WORLD TRADE  
ORGANIZATION  WT/DS285/AB/R 
7 April 2005 
 (05-1426) 
 Original:   English 
  
 
     
 
    
 
  
UNITED STATES – MEASURES AFFECTING THE CROSS-BORDER SUPPLY OF 
GAMBLING AND BETTING SERVICES 
 
 
 
AB-2005-1 
     
 
 
 
    
Report of the Appellate Body 
  WT/DS285/AB/R 
 Page i 
 
 
 
I. Introduction................................................................................................................... ..............1  
II. Arguments of the Participants and the Third Participants ..........................................................6  
A. Claims of Error by the United States – Appellant ......................................................... 6 
1. Antigua's  Prima Facie   Case ...........................................................................6  
2. United States' Schedule of Specific Commitments...........................................8  
3. Article XVI:2(a) and XVI:2(c) of the GATS – "limitations ... in the 
form of"...........................................................................................................10  
4. Article XIV of the GATS:  General Exceptions .............................................12  
5. "Practice" as a "Measure" ...............................................................................15  
B. Arguments of Antigua – Appellee ................................................................................ 15 
1. Antigua's  Prima Facie   Case .........................................................................15  
2. United States' Schedule of Specific Commitments.........................................16  
3. Article XVI:2(a) and XVI:2(c) of the GATS – "limitations ... in the 
form of"...........................................................................................................17  
4. Article XIV of the GATS:  General Exceptions .............................................18  
5. "Practice" as a "Measure" ...............................................................................19  
C. Claims of Error by  Antigua – Appellant ...................................................................... 19 
1. The "Total Prohibition" as a "Measure" .........................................................19  
2. Article XVI:1 of the GATS – Conditional Appeal .........................................20  
3. Article XVI:2(a) and XVI:2(c) of the GATS – Measures Aimed at 
Consumers ......................................................................................................21  
4. Article XIV of the GATS:  General Exceptions .............................................22  
D. Arguments by the United States – Appellee ................................................................. 25 
1. The "Total Prohibition" as a "Measure" .........................................................25  
2. Article XVI:1 of the GATS – Conditional Appeal .........................................26  
3. Article XVI:2(a) and XVI:2(c) of the GATS – Measures Aimed at 
Consumers ......................................................................................................27  
4. Article XIV of the GATS................................................................................27  
E. Arguments of the Third Participants............................................................................ 30 
1. European Communities...................................................................................30  
2. Japan ...............................................................................................................32  
3. Separate Customs Territory of Ta iwan, Penghu, Kinmen and Matsu ............33  
III. Issues Raised in This Appeal ................................................................................................... .34 
IV. Measures at Issue .............................................................................................................. ........37  
A. "Total Prohibition" as a Measure................................................................................ 37 
B. "Practice" as a Measure .............................................................................................. 41 
C. Antigua's Prima Facie Case ........................................................................................ 42 WT/DS285/AB/R 
Page ii  
 
V.
 Interpretation of the Specific Commitment s Made by the United States in its GATS 
Schedule....................................................................................................................... .............51  
A. Interpretation of Subsector 10.D A ccording to the General Rule of 
Interpretation:  Article 31 of the Vienna Convention .................................................. 52 
B. Interpretation of Subsector 10.D in A ccordance with Supplementary Means of 
Interpretation:  Article 32 of the Vienna Convention .................................................. 67 
C. Summary ...................................................................................................................... 73 
VI. Article XVI of the GATS:  Market Access...............................................................................73  
A. Prelimina ry Matt ers..................................................................................................... 75 
B. The Meaning of Sub-paragraphs (a ) and (c) of Article XVI ........................................ 76 
1. Sub-paragraph (a) of Article XVI:2................................................................77  
2. Sub-paragraph (c) of Article XVI:2................................................................81  
3. Article XVI:2(a) and (c) – Prohib itions Directed at Consumers ....................84  
C. Does the Second Paragraph of Article XVI Exhaust the Market Access 
Restrictions that are Prohib ited by the First Paragraph?........................................... 85 
D. Application of Article XVI to the Measures at Issue.................................................... 86 
VII. Article XIV of the GATS:  General Exceptions .......................................................................89  
A. Did the Panel Err in Considering the United States' Defence Under 
Article XIV? ................................................................................................................. 89 
B. Did the Panel Err in its Treatment of the Burden of Proof Under Article XIV? ......... 92 
C. The Panel's Substantive An alysis Under Ar ticle XIV................................................... 97 
1. Justification of the Measures Under Paragraph (a) of Article XIV ................98  
2. Justification of the Measures Under Paragraph (c) of Article XIV ..............111  
3. The Chapeau of Article XIV.........................................................................111  
4. Overall Conclusion on Article XIV ..............................................................122  
VIII. Findings and Conclusions....................................................................................................... 123 
  WT/DS285/AB/R 
 Page iii 
 
 
ANNEX I Notification of an Appeal by the United States under paragraph 4 of  
Article 16 of the Understanding on Rules and Procedures Governing  
the Settlement of Disputes (DSU) 
 ANNEX II Notification of Other Appeal by Antigua and Barbuda under Article 16.4  
and Article 17 of DSU, and under Rule 23(1) of the  Working Procedures  
for Appellate Review  
 
ANNEX II(a) Notification of Other Appeal by  Antigua and Barbuda under Article 16.4  
and Article 17 of DSU, and under Rule 23(1) of the  Working Procedures  
for Appellate Review :  Corrigendum 
 ANNEX III The United States of America – Schedule of Specific Commitments, 
GATS/SC/90 
 WT/DS285/AB/R 
Page iv  
 
TABLE OF CASES CITED IN THIS REPORT 
 
Short Title Full Case Title and Citation 
Argentina – Textiles and 
Apparel  Appellate Body Report, Argentina – Measures Affecting Imports of Footwear, 
Textiles, Apparel and Other Items , WT/DS56/AB/R and Corr.1, adopted 
22 April 1998, DSR 1998:III, 1003 
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327 
Canada – Aircraft  Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft , WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, 1377 
Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the Automotive 
Industry , WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, 
DSR 2000:VI, 2985 
Canada – Dairy  
(Article 21.5 – New Zealand and US II)
  Appellate Body Report, Canada – Measures Affecting the Importation of Milk and 
the Exportation of Dairy Products – Second R ecourse to Article 21.5 of the DSU by 
New Zealand and the United States , WT/DS103/AB/RW2, WT/DS113/AB/RW2, 
adopted 17 January 2003 
Canada – Wheat Exports and 
Grain Imports Appellate Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R, adopted 27 September 2004 
Chile – Price Band System  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R, adopted 
23 October 2002 
EC – Asbestos  Appellate Body Report, European Communities – Measures Affecting Asbestos and 
Asbestos-Containing Products , WT/DS135/AB/R, adopted 5 April 2001, 
DSR 2001:VII, 3243 
EC – Bananas III  Appellate Body Report, European Communities – Regime for the Importation, Sale 
and Distribution of Bananas , WT/DS27/AB/R, adopted 25 September 1997, 
DSR 1997:II, 591 
EC – Bed Linen  
(Article 21.5 – India)  Appellate Body Report, European Communities – Anti-Dumping Duties on Imports 
of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSU  by 
India , WT/DS141/AB/RW, adopted 24 April 2003  
EC – Computer Equipment  Appellate Body Report, European Communities – Customs Classification of 
Certain Computer Equipment , WT/DS62/AB/R, WT/DS67/AB/R, 
WT/DS68/AB/R, adopted 22 June 1998, DSR 1998:V, 1851 
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, 135 
EC – Tariff Preferences Appellate Body Report, European Communities – Conditions for the Granting of 
Tariff Preferences to Developing Countries , WT/DS246/AB/R, adopted 20 April 
2004 
India – Patents (US)  Appellate Body Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998, 
DSR 1998:I, 9 
Japan – Agricultural Products II  Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277 
Japan – Alcoholic Beverages II  Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R, 
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97  
Japan – Apples  Appellate Body Report, Japan - Measures Affecting the Importation of Apples , 
WT/DS245/AB/R, adopted 10 December 2003  WT/DS285/AB/R 
 Page v 
 
 
Short Title Full Case Title and Citation 
Korea – Various Measures on 
Beef  Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and 
Frozen Beef , WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, 
DSR 2001:I, 5 
Mexico – Corn Syrup  
(Article 21.5 – US)  Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose 
Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSU  
by the United States , WT/DS132/AB/RW, adopted 21 November 2001, DSR 
2001:XIII, 6675 
Thailand – H-Beams  Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and 
Sections of Iron or Non-Alloy Steel and H-Beams from Poland , WT/DS122/AB/R, 
adopted 5 April 2001, DSR 2001:VII, 2701 
US – 1916 Act  Appellate Body Report, United States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X, 
4793 
US – Carbon Steel  Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Steel Flat Products from Germany , WT/DS213/AB/R 
and Corr.1, adopted 19 December 2002 
US – Certain EC Products  Appellate Body Report, United States – Import Measures on Certain Products from 
the European Communities , WT/DS165/AB/R, adopted 10 January 2001, 
DSR 2001:I, 373 
US – Corrosion-Resistant Steel 
Sunset Review  Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on 
Corrosion-Resistant Carbon Steel Flat Products from Japan , WT/DS244/AB/R, 
adopted 9 January 2004  
US – Corrosion-Resistant Steel 
Sunset Review  Panel Report, United States – Sunset Review of Anti-Dumping Duties on 
Corrosion-Resistant Carbon Steel Flat Products from Japan , WT/DS244/R, 
adopted 9 January 2004, as modified by the Appellate Body Report, 
WTDS244/AB/R  
US – Countervailing Measures 
on Certain EC Products  Appellate Body Report, United States – Countervailing Measures Concerning 
Certain Products from the European Communities , WT/DS212/AB/R, adopted 8 
January 2003 
US – FSC  Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" , WT/DS108/AB/R, adopted 20 March 2000, DSR 2000:III, 1619 
US – FSC  
(Article 21.5 – EC)  Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Recourse to Articl e 21.5 of the DSU by the European 
Communities , WT/DS108/AB/RW, adopted 29 January 2002, DSR 2002:I, 55 
US – Gasoline  Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3 
US – Oil Country Tubular Goods 
Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures 
on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, adopted 17 
December 2004 
US – Section 301 Trade Act  Panel Report, United States – Sections 301-310 of the Trade Act of 1974 , 
WT/DS152/R, adopted 27 January 2000, DSR 2000:II, 815 
US – Shrimp  Appellate Body Report, United States – Import Prohibition of Certain Shrimp and 
Shrimp Products , WT/DS58/AB/R, adopted 6 November 1998, 
DSR 1998:VII, 2755 
US – Softwood Lumber IV  Appellate Body Report, United States – Final Countervailing Duty Determination 
with Respect to Certain Softwood Lumber from Canada , WT/DS257/AB/R, 
adopted 17 February 2004 WT/DS285/AB/R 
Page vi  
 
Short Title Full Case Title and Citation 
US – Tuna (Mexico) GATT Panel Report, United States – Restrictions on Imports of Tuna , 
3 September 1991, unadopted, BISD 39S/155 
US – Wheat Gluten  Appellate Body Report, United States – Definitive Safeguard Measures on Imports 
of Wheat Gluten from the European Communities , WT/DS166/AB/R, adopted 
19 January 2001, DSR 2001:II, 717 
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India, WT/DS33/AB/R and Corr.1, adopted 
23 May 1997, DSR 1997:I, 323 
 
  WT/DS285/AB/R 
 Page 1 
 
 
WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
United States – Measures Affecting the 
Cross-Border Supply of Gambling and Betting Services 
 
United States, Appellant/Appellee 
Antigua, Appellant/Appellee  
 
Canada, Third Participant  
European Communities, Third Participant  
Japan, Third Participant  
Mexico, Third Participant  
Separate Customs Territory of Taiwan, Penghu, 
 Kinmen and Matsu, Third Participant   AB-2005-1 
  Present:  
 Sacerdoti, Presiding Member 
Abi-Saab, Member Lockhart, Member 
 
  
I. Introduction 
1. The United States, and Antigua and Barbuda (" Antigua"), each appeals certain issues of law 
and legal interpretations deve loped in the Panel Report, United States – Measures Affecting the Cross-
Border Supply of Gambling and Betting Services   (the "Panel Report").
1  The Panel was established to 
consider a complaint by Antigua concerning certain measures of state and federal authorities that 
allegedly make it unlawful for suppliers located outside the United States to supply gambling and 
betting services to consumers within the United States.2 
2. Before the Panel, Antigua claimed that certain  restrictions imposed by the United States 
through federal and state laws resulted in a "total  prohibition" on the cross-border supply of gambling 
and betting services from Antigua.3  Antigua contended that such a "total prohibition" was contrary to 
obligations of the United States under the General Agreement on Trade in Services  (the "GATS").  In 
particular, Antigua asserted that the GATS Schedule of the United States includes specific commitments on gambling and betting services.  Antigua argued that, because the United States made full market access and national treatment commitmen ts (that is, inscribed "None" in the relevant 
columns of its GATS Schedule), the United States, in  maintaining the measures at issue, is acting 
                                                     
 
1WT/DS285/R, 10 November 2004. 
2Panel Report, para. 1.1. 
3Ibid., paras. 6.154, 6.156-6.157. WT/DS285/AB/R 
Page 2  
 
inconsistently with its oblig ations under its GATS Schedule
4, as well as under Articles VI, XI, XVI, 
and XVII of the GATS.5 
3. On 17 October 2003, after receiving Antigua's firs t written submission to the Panel and before 
filing its own first written submission, the Unite d States requested the Panel to make certain 
preliminary rulings, including a ruling that Antigua had failed to make a  prima facie  case that 
specific United States measures are inconsistent with the GATS.6  In particular, the United States 
argued that a "total prohibition" on the cross-bor der supply of gambling and betting services could not 
constitute a "measure".7  According to the United States, by challenging such an alleged "total 
prohibition", rather than the laws and regulations underlying that prohibition, Antigua had failed to 
satisfy its burden as the complaining party to "iden tif[y] … specific measures that are the subject of 
[its]  prima facie  case."8  The Panel denied the United States' request on the ground that it was 
premature, given that Antigua had "two sets of  written submissions and two panel hearings to 
convince the Panel that it [had] established a  prima facie  case."9   
4. In its oral and written submissions to the Panel,  the United States maintained its objections to 
the Panel's consideration of Antigua's claims on the basis of an alleged "total prohibition", reiterating 
its argument that Antigua had failed to establish a  prima facie   case.10  In the Panel Report, circulated 
to Members of the World Trade Organization (the "WTO") on 10 November 2004, the Panel 
addressed this argument by "identify[ing] the measur es that the Panel [would] consider in determining 
whether the specific provisions of the GATS that Antigua [had] invoked have been violated."11  The 
Panel determined, first, that Antigua was not entitle d to rely on the alleged "total prohibition" as a 
"measure" in and of itself.12  The Panel then determined that the following laws of the United States 
                                                      
4Panel Report, para. 2.1(a). 
5Ibid., para. 2.1(b). 
6Panel's Decision on the Request for Preliminary Rulings, para. 49, attached as Annex B to Panel 
Report, p. B-13. 
7Panel's Decision on the Request for Preliminary Rulings, para. 51, attached as Annex B to Panel 
Report, p. B-14. 
8Panel's Decision on the Request for Preliminary Rulings, para. 50, attached as Annex B to Panel 
Report, p. B-13. (footnote omitted) 
9Panel's Decision on the Request for Preliminary Rulings, para. 40, attached as Annex B to Panel 
Report, p. B-9. 
10United States' first written submission to the Panel, pa ras. 40-58;  United States' statement at the first 
substantive panel meeting, paras. 11-21;  United States ' second written submission to the Panel, paras. 6-9;  
United States' statement at the second substa ntive panel meeting, paras. 2-3 and 8-18. 
11Panel Report, para. 6.148. 
12Ibid., para. 6.185.  WT/DS285/AB/R 
 Page 3 
 
 
had been "sufficiently identified [by Antigua] so as to warrant a substantive examination by the 
Panel"13: 
(A) Federal laws: 
(i) Section 1084 of Title 18 of the United States Code (the "Wire Act"); 
(ii) Section 1952 of Title 18 of the United St ates Code (the "Travel Act");  and 
(iii) Section 1955 of Title 18 of the United States Code (the "Illegal Gambling 
Business Act", or "IGBA").   
(B) State laws: 
(i) Colorado :  Section 18-10-103 of the Colorado Revised Statutes; 
(ii) Louisiana :  Section 14:90.3 of the Louisiana Revised Statutes (Annotated);   
(iii) Massachusetts :  Section 17A of chapter 271 of the Annotated Laws of 
Massachusetts; 
(iv) Minnesota :  Section 609.755(1) and Subdivisions 2-3 of Section 609.75 of 
the Minnesota Statutes (Annotated); 
(v) New Jersey :  Paragraph 2 of Section VII of Article 4 of the New Jersey 
Constitution, and Section 2A:40-1 of the New Jersey Code; 
(vi) New York :  Section 9 of Article I of the New York Constitution and Section 
5-401 of the New York General Obligations Law; 
(vii) South Dakota :  Sections 22-25A-1 through 22-25A-15 of the South Dakota 
Codified Laws;  and 
(viii) Utah :  Section 76-10-1102 of the Utah Code (Annotated).14 
5. After evaluating Antigua's claims with respect to these federal and state measures, the Panel 
concluded that: 
(a) the United States' Schedule under the GATS includes 
specific commitments on gambling and betting services 
under sub-sector 10.D; 
(b) by maintaining the following measures, ... the United States 
fails to accord services and service suppliers of Antigua treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its 
Schedule, contrary to Article XVI:1 and Article XVI:2 of the 
GATS: 
                                                     
 
13Panel Report, para. 6.219. 
14See ibid., para. 6.249. WT/DS285/AB/R 
Page 4  
 
(i) Federal laws   
(1) the Wire Act; (2) the Travel Act (when read together with the 
relevant state laws);
1072  and 
(3) the Illegal Gambling Business Act (when 
read together with the relevant state laws).1073 
(ii) State laws: 
(1) Louisiana : § 14:90.3 of the La. Rev. Stat. 
Ann.; 
(2) Massachusetts : § 17A of chapter 271 of 
Mass. Ann. Laws; 
(3) South Dakota : § 22-25A-8 of the S.D. 
Codified Laws;  and 
(4) Utah : § 76-10-1102(b) of the Utah Code. 
(c) Antigua has failed to demonstrate that the measures at issue 
are inconsistent with Articles VI:1 and VI:3 of the GATS; 
(d) The United States has not been able to demonstrate that the 
Wire Act, the Travel Act (when read together with the relevant state laws) and the Illegal Gambling Business Act (when read together with the relevant state laws): 
(i) are provisionally justified under Articles XIV(a) 
and XIV(c) of the GATS;  and 
(ii) are consistent with the requirements of the chapeau 
of Article XIV of the GATS.
15 
_______________________________________________________ 
1072 That is, state laws that prohibit a "business enterprise involving 
gambling".  Such state laws would include but are not limited to § 14:90.3 
of the Louisiana Rev. Stat. Ann., § 17A of chapter 271 of Massachusetts 
Ann. Laws, § 22-25A-8 of the South Dakota Codified Laws, and § 76-10-1102(b) of the Utah Code. 
1073 That is, state laws that prohibit a "g ambling business ".  Such state laws 
would include but are not limited to § 14:90.3 of the Louisiana Rev. Stat. Ann., § 17A of chapter 271 of Massachusetts Ann. Laws, § 22-25A-8 of the 
South Dakota Codified Laws, and § 76-10-1102(b) of the Utah Code. 
                                                      
15Panel Report, paras. 7.2(a)-(d).  WT/DS285/AB/R 
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6. The Panel further found that the following state laws  are not inconsistent with of Article XVI:  
(i) Section 18-10-103 of the Colorado Revised Statutes16;  (ii) Section 609.755(1) and Subdivisions 2-
3 of Section 609.75 of the Minnesota Statutes (Annotated)17;  (iii) paragraph 2 of Section VII of 
Article 4 of the New Jersey Constitution, an d Section 2A:40-1 of the New Jersey Code18;  and (iv) 
Section 9 of Article I of the New York Constitu tion and Section 5-401 of the New York General 
Obligations Law.19  The Panel decided to exercise judicial  economy with respect to Antigua's claims 
under Articles XI and XVII of the GATS.20  The Panel accordingly recommended that the Dispute 
Settlement Body ("DSB") request the United States to  bring the measures that the Panel had identified 
as GATS-inconsistent into conformity with th e United States' obligations under the GATS.21 
7. On 7 January 2005, the United States notified the DSB of its intention to appeal certain issues 
of law covered in the Panel Report and certain legal interpretations developed by the Panel, pursuant 
to paragraph 4 of Article 16 of the DSU, and filed a Notice of Appeal22 pursuant to Rule 20 of the 
Working Procedures for Appellate Review  (the " Working Procedures ").23  On 19 January 2005, 
Antigua also notified the DSB of its intention to a ppeal certain issues of law covered in the Panel 
Report and certain legal interpretati ons developed by the Panel, pursua nt to paragraph 4 of Article 16 
of the DSU, and filed a Notice of Other Appeal24 pursuant to Rule 23(1) of the  Working Procedures .  
On 14 January 2005, the United Stat es filed its appellant's submission.25  Antigua filed an other 
appellant's submission on 24 January 2005.26  The United States and Antigua each filed an appellee's 
submission on 1 February 2005.27  O n  t h a t  s a m e  d a y ,  t h e  E u r opean Communities, Japan and the 
Separate Customs Territory of Ta iwan, Penghu, Kinmen and Matsu ea ch filed a third participant's 
submission.28  Also on 1 February 2005, Mexico notifie d the Appellate Body Secretariat of its 
                                                      
16Panel Report, para. 6.383. 
17Ibid., paras. 6.397-6.398. 
18Ibid., para. 6.402. 
19Ibid., para. 6.406. 
20Ibid., para. 7.2(e). 
21Ibid., para. 7.5. 
22Notification of an Appeal by the United States, WT /DS285/6, 13 January 2005 (attached as Annex I 
to this Report).   
23WT/AB/WP/5, 4 January 2005. 
24Notification of Other Appeal by Antigua and Barbuda, WT/DS285/7, 16 February 2005;  
WT/DS285/7/Corr.1, 17 February 2005 (attached as Annexes II and II(a), respectively, to this Report).   
25Pursuant to Rule 21(1) of the Working Procedures . 
26Pursuant to Rule 23(3) of the Working Procedures . 
27Pursuant to Rule 22 and Rule 23(4) of the Working Procedures . 
28Pursuant to Rule 24(1) of the Working Procedures . WT/DS285/AB/R 
Page 6  
 
intention to make a statement at the oral heari ng as a third participant, and Canada notified its 
intention to appear at the oral hearing as a third participant.
29   
8. The oral hearing was held on 21 and 22 February 2005.  The participants and third 
participants each made an oral statement (with the exception of Canada and the Separate Customs 
Territory of Taiwan, Penghu, Kinmen, and Matsu) a nd responded to questions put to them by the 
Members of the Division hearing the appeal. 
II. Arguments of the Participants  and the Third Participants 
A. Claims of Error by the United States – Appellant  
1. Antigua's  Prima Facie   Case  
9. The United States argues that Antigua did not make a  prima facie   case that any particular 
United States measure is inconsistent with any pr ovision of the GATS.  The United States therefore 
requests the Appellate Body to find that the Pane l erred in law because it ne vertheless made findings 
on Antigua's claims and thereby abso lved Antigua from establishing a  prima facie   case.  The United 
States further submits that the Panel made the case  for Antigua with respect to three United States 
federal laws and eight state laws and thus denied the United States a "fair opportunity"30 to defend the 
laws at issue, inconsistent with the Panel' s obligations under Article 11 of the DSU.   
10. According to the United States, Antigua made its  case on the basis that the measure at issue 
was "the total prohibition on the cross-bor der supply of gambling and betting services."31 The United 
States emphasizes, Antigua never specifically alleged th at any particular law or laws violate Article 
XVI of the GATS.  The United States emphasizes that, Antigua never specifically alleged that any 
particular law or laws violate Article XVI of the GATS.  Thus, Antigua did not identify precisely 
what measures it was challenging or provide evid ence and argumentation sufficient to establish a 
presumption of inconsistency of any measures with any provision of the GATS.     
11. The United States contends that the Panel rej ected Antigua's reliance on the alleged "total 
prohibition" as the measure at issue in this dispute and properly found that it could not identify the 
individual laws supporting Antigua's case where Anti gua itself had not.  Nevertheless, according to 
the United States, the Panel proceeded to review An tigua's submissions and exhibits and identify for 
itself whether and how particular laws resulted in a prohibition on the remote supply of gambling 
services.  In so doing, the Panel exceeded the limits of  its authority, and erred in the same way that the 
                                                      
29Pursuant to Rule 24(2) of the Working Procedures . 
30United States' appellant's submission, para. 43. 
31Ibid., para. 8 (quoting Antigua's first written submissi on to the Panel, para. 136). (emphasis omitted)  WT/DS285/AB/R 
 Page 7 
 
 
Appellate Body found the panels in  Japan – Agricultural Products II   and  Canada – Wheat Exports 
and Grain Imports   to have erred.32  The United States further contends that the Panel mistakenly 
found support for its approach in the Appellate Body decisions in  Canada – Autos   and  Thailand – 
H-Beams .33  The Panel is said to have further erred in referring to a purported admission by the United 
States that "federal and state laws are applied and enforced so as to prohi bit what it describes as the 
'remote supply' of most gambling and betting services"34, when the United States never conceded that 
any particular measure had this effect.  The Unite d States maintains that the approach taken by the 
Panel in this case—namely identifying a subset  of United States measures from the "remarkably 
broad" list of "possibly relevant"35 laws in Antigua's panel request, and assembling arguments 
regarding their meaning, application and consiste ncy with Article XVI—unfairly deprived the United 
States of any opportunity to respond and defend those specific measures.   
12. In addition to alleging legal error on the basis that the Panel made findings on claims in the 
absence of a  prima facie  case by Antigua, the United States asserts that the Panel did not comply 
with its obligations under Article 11 of the DSU.36  Although the Panel explicitly recognized its lack 
of authority to make the case for the complaining party, the Panel is said to have nevertheless 
assumed the role of the complaining party in this dis pute.  Moreover, the Panel did not merely "fill in 
small gaps" in Antigua's claim, but rather, "created an entirely new approach to the case on behalf of the complaining party".
37  In the submission of the United States, the "egregious" nature of the Panel's 
approach to Antigua's claims gives rise to a separate and distinct error, namely that the Panel failed to 
satisfy its duty under Article 11 of the DSU to "mak e an objective assessment of the matter before 
it".38  The United States thus requests that the Appella te Body find that the Panel failed to satisfy its 
obligations under Artic le 11 of the DSU. 
13. For these reasons, the United States argues that the Panel erroneously concluded that:  (i) it 
"should consider" three federal laws and eight stat e laws in order to determine whether the United 
States violated its obligations under the GATS;  and ( ii) Antigua had met its burden of proof that these 
laws result in a prohibition on the remote supply of  gambling and betting services.  "Separate and in 
                                                      
32United States' appellant's submission, paras. 12-14 (referring to Appellate Body Report, Japan – 
Agricultural Products II , paras. 125-131;  and Appellate Body Report, Canada – Wheat Exports and Grain 
Imports , para. 191). 
33Ibid., paras. 31-35 (citing Appellate Body Report, Canada – Autos , para. 184;  and Appellate Body 
Report, Thailand – H-Beams , para. 136). 
34Ibid., para. 36 (quoting Panel Report, para. 6.164). 
35Ibid., para. 38. 
36Ibid., para. 39. 
37Ibid., para. 42. 
38Ibid., para. 39. WT/DS285/AB/R 
Page 8  
 
addition to" this error
39, the United States argues that the Panel' s resolution of Antigua's claims was 
inconsistent with the Panel's obligations under Arti cle 11 of the DSU.  Should the Appellate Body 
find error on either ground, the United States request s that the Appellate Body determine that the 
remaining Panel findings are "without legal effect".40 
2. United States' Schedule of Specific Commitments  
14. The United States appeals the Panel's finding th at the United States' Schedule to the GATS 
includes specific commitments on gambling and betting services under subsector 10.D, entitled "other recreational services (except sporting)".  The Unit ed States maintains that it expressly excluded 
"sporting", the ordinary meaning of which includes gambling, from the United States' commitment for 
recreational services.  In the United States' submissi on, the Panel misinterpreted the ordinary meaning 
of "sporting" and improperly elevated certain prepar atory work for the GATS to the status of context 
for the interpretation of the relevant United States' commitment. 
15. According to the United States, in concluding that the ordinary meaning of "sporting" does 
not cover gambling, the Panel misapplied the custom ary rules of treaty interpretation and disregarded 
relevant WTO decisions.  The Panel is said to ha ve disregarded numerous English dictionaries that 
confirm that "sporting" in English includes activity pe rtaining to gambling and, thus, failed to give the 
word "sporting" in the United States' Schedule this  ordinary English-language meaning, as required 
by the  Vienna Convention on the Law of Treaties  (the  "Vienna Convention ").
41  Furthermore, the 
United States contends that the Panel erred in rely ing on the meaning of the term "sporting" in French 
and Spanish, because the cover page of the United Stat es' Schedule clarifies that "[t]his is authentic in 
English only".42   
16. The United States also asserts that the Panel erred in treating two documents, referred to in 
the Panel Report as "W/120"43 and the "1993 Scheduling Guidelines"44, as context instead of as 
negotiating documents that constitute preparatory wo rk.  The United States points out that Members 
never agreed to memorialize W/120 and the 1993 Sche duling Guidelines, and that the disagreement of 
parties to the Uruguay Round services negotiations as to the content of these two documents prepared 
by the Secretariat is apparent in the divergent approaches adopted by Members in scheduling their 
                                                      
39United States' appellant's submission, heading II.A.10, p. 23. 
40Ibid., para. 3. (footnote omitted) 
41Done at Vienna, 23 May 1969, 1155 UNTS 331;  8 International Legal Materials 679. 
42United States' appellant's submission, para. 51. 
43Services Sectoral Classification List:  Note by the Secretariat, MTN.GNS/ W/120, 10 July 1991. 
44Scheduling of Initial Commitments in Trade in Services:  Explanatory Note, MTN.GNS/W/164, 
3 September 1993.   WT/DS285/AB/R 
 Page 9 
 
 
specific commitments.  Therefore, the United States asserts, neither W/120 nor the 1993 Scheduling 
Guidelines reflects an "agreement between the parties"  or an "agreement made by all participants", 
within the meaning of Article 31(2) of the  Vienna Convention.  
17. According to the United States, the character ization of these documents carries important 
implications because, under Articles 31 and 32 of the  Vienna Convention ,  context has primary 
interpretative significance, whereas preparatory work is merely a supplementary means of 
interpretation.  A panel may look to preparatory work only to confirm an interpretation made in 
accordance with Article 31 of the  Vienna Convention,   or if such interpretation leaves the meaning 
ambiguous or unclear or leads to a result that is ma nifestly absurd or unreasonable.  In this case, 
however, the Panel is said to have erred in us ing W/120 and the 1993 Scheduling Guidelines, which 
are "mere preparatory work"45, to support a meaning that is at odds with the ordinary meaning of the 
"sporting" exclusion in the United States' Schedule.  According to the United States, the Panel could 
not have reached the conclusion that it did, had it  treated the 1993 Scheduling Guidelines and W/120 
as preparatory work. 
18. In the United States' submission, the proper cont ext for its Schedule is the Schedules of other 
WTO Members.  Consistent with the principle of effective treaty interpretation, the absence of any 
reference in the United States' Schedule to the United Nations' Provisional Central Product 
Classification46 (the "CPC"), in contrast to other Schedules, must be given legal effect.  Therefore, the 
United States' Schedule must be interpreted acco rding to its ordinary meaning and cannot be 
presumed to follow the meaning given to various terms by the CPC.   Similarly, other Members' 
Schedules confirm that at least one Member made a commitment for gambling and betting services in subsector 10.E.  Thus, the United States argues, the Panel erred in failing to find that, in the United 
States' Schedule, gambling properly resides in  10.E—where the United States made no 
commitment—rather than in the broad category of "recreational services" in 10.D.   
19. The Panel is said, however, to have ignored the ordinary meaning of the United States' 
Schedule, read in the proper context, and instead erroneously created a "presumption" that, unless the 
United States "expressly" departed from W/120 and the CPC, it could be "assumed to have relied 
on W/120 and the corresponding CPC references."
47  In this respect, the United States contends that 
the Panel confused the  structure   of W/120 with the cross-references to the CPC contained in that 
document, failing to recognize that Members, such as the United States, may have elected to adopt the 
former without necessarily embracing the latter.  Thus, the Panel is said to have been wrong in 
                                                      
45United States' appellant's submission, para. 65. 
46Provisional Central Product Classification, Statistic al Papers, Series M No.77, United Nations (1991). 
47United States' appellant's submission, para. 75 (quoting Panel Report, paras. 6.103-6.106). WT/DS285/AB/R 
Page 10  
 
construing any purported ambiguity against the Unit ed States and failing to acknowledge that there 
was no mutual understanding between the parties to the services negotiations as to the coverage of 
gambling in the United States' Schedule.  In the United States' submission, such an approach, if 
upheld, would allow Members to expand negotia ted commitments through dispute settlement. 
20. The United States therefore requests the Appellate Body to reverse the Panel's finding that the 
United States undertook specific commitments on gambling and betting services in its GATS 
Schedule.  Should the Appellate Body reach this issue and reverse the Panel's finding, the United 
States requests that the Appellate Body determine th at the remaining Panel findings are "without legal 
effect."
48 
3. Article XVI:2(a) and XVI:2(c) of the GA TS – "limitations ... in the form of"  
21. The United States challenges the Panel's finding that the United States acts inconsistently 
with paragraphs (a) and (c) of Article XVI:2 by  failing to accord services and service suppliers of 
Antigua "treatment no less favourable than that provided for" in the United States' Schedule.  
According to the United States, the Panel erre d in converting two of the prohibitions on  specific 
forms   of market access limitations set out in Article XVI:2 into  general prohibitions   on any measure 
having an effect similar to that of a "zero quota", regardless of form. 
22. The United States contends that, in interpreting Article XVI, the Panel failed to give meaning 
to the text and expanded the obligations set out in that provision.  The Panel is said to have ignored 
the fact that Article XVI "represents a precisely de fined constraint on certain  problematic limitations 
specifically identified by Members"49 and that measures not caught by Article XVI remain subject to 
disciplines set out elsewhere in the GATS, including in Article XVII and Article VI.  According to the 
United States, these errors are revealed in the Panel' s misinterpretation of s ub-paragraphs (a) and (c) 
of Article XVI:2.   
23. As to Article XVI:2(a), the United States argues that the Panel misunderstood the ordinary 
meaning of this provision because the Panel ignored the requirement that limitations be "in the form 
of numerical quotas".  In particular, the United Stat es contends, the Panel erroneously found that "a 
measure that is not expressed in the form of a numerical quota or economic needs test may still fall 
within the scope of Article XVI:2(a)" if it has the "effect" of a zero quota.50  In the United States' 
submission, a limitation that has only the "effect" of limiting to zero the number of service suppliers, 
or their output, does not satisfy the "form" requirements of Article XVI:2. 
                                                      
48United States' appellant's submission, para. 3. (footnote omitted) 
49Ibid., para. 97. 
50Ibid., para. 109 (quoting Panel Report, para. 6.332).  WT/DS285/AB/R 
 Page 11 
 
 
24. As to Article XVI:2(c), the United States contends  that the Panel did not come to the proper 
ordinary meaning of this provision because it used an incorrect reading of the French and Spanish 
versions as the basis for its interpretation, which is at odds with a plain reading of the English text.  
This approach, which is contrary to Article 33(4) of the  Vienna Convention ,  is said to have led the 
Panel to the erroneous conclusion that Article XVI: 2(c) refers to limitations "expressed in terms of 
designated numerical units" and limitations "in the form of quotas", when in fact the absence of a 
comma in Article XVI:2(c) requires these to be read together as a unitary requirement, namely, 
limitations "expressed in terms of designated numerical units in the form of quotas".   
25. The United States submits that none of the Un ited States state and federal laws imposes a 
limitation on the number of service suppliers "in the form of numerical quotas" or limitations on 
service operations or output "expressed as designated num erical units in the form of quotas".  Rather, 
these laws represent domestic regulation limiting the  characteristics   of supply of gambling services, 
not the  quantity   of services or service suppliers.  More sp ecifically, these laws are "in the form of" 
and "expressed" as non-numerical, non-quota criteria that restrict certain activities, rather than restricting numbers of suppliers, operations, or output.  As these laws match none of the "forms" 
identified in Article XVI:2(a) or XVI:2(c), the Unit ed States argues that the Panel should have found 
that these laws are not inconsistent with those provisions. 
26. The United States contends that the Panel's in terpretation of Article XVI:2(a) and XVI:2(c) 
would "unreasonably and absurdly"
51 deprive Members of much of their right to regulate services by 
not allowing them to prohibit selected activities in sectors where commitments are made.  The 
approach to market access liberaliza tion reflected in the GATS is said  not  to provide an unlimited 
right to supply services throughout each committed sect or or mode of supply.  Such an approach 
would be at odds, so it is argued, with the balan ce between liberalization and regulation reflected in 
the Members' recognized right to regulate services.  According to the United States, there is no reason 
why a Member's imposition of nationality-neutr al limitations should violate Article XVI  provided 
that  they do not take the form of numerical quotas or any other form prohibited by Article XVI:2.  
Such limitations remain subject to other GATS pr ovisions, however, including Article VI.  In this 
regard, the United States also questions the Panel' s finding that Article XVI, and Article VI:4 and 
VI:5, are mutually exclusive.   
27. For these reasons, the United States requests that the Appellate Body reverse the Panel's 
findings that the United States failed to satisfy its obligations under Article XVI:2(a) and XVI:2(c) of 
                                                      
51United States' appellant's submission, para. 129. WT/DS285/AB/R 
Page 12  
 
the GATS.  Should the Appellate Body so decide, the United States requests the Appellate Body to 
determine that the remaining Panel findings are "without legal effect."
52   
4. Article XIV of the GATS:  General Exceptions  
28. The United States appeals the Panel's findings th at the Wire Act, the Travel Act, and the 
Illegal Gambling Business Act are not justified under paragraph (a) or (c) of Article XIV of the GATS 
and are inconsistent with the requirements of the chapeau of Article XIV. 
(a) Paragraphs (a) and (c) of Article XIV:  "Necessary" 
29. According to the United States, the Panel err oneously interpreted the term "necessary" in 
Article XIV(a) and XIV(c) to require the United States to "explore and exha ust reasonably available 
WTO-consistent alternatives"53 that would ensure the same level of protection as the prohibition on 
the remote supply of gambling and betting services.  The United States contends that the Panel then 
misunderstood this obligation, in conjunction with the specific market access commitments set out in 
the United States' Schedule, as requiring the United States to hold consultations with Antigua before 
and while imposing the prohibition on the remo te supply of gambling and betting services.  
30. The United States underlines that the Panel errone ously read a "procedural requirement" of 
consultation or negotiation into  Article XIV(a) and XIV(c).54  Such a requirement is said to find no 
support in either the text of Article XIV or in pr evious decisions of GATT panels and the Appellate 
Body.  Pointing to Articles XII:5 and XXI:2(a) of the GATS, the United States asserts that the treaty 
drafters were explicit when they intended to impo se a prerequisite of consultations before a Member 
could take certain actions, and that no such explicit requirement is found in the text of Article XIV.  
The United States also contends that, when exam ining whether a WTO-consistent alternative was 
reasonably available, the Panel departed from pr evious GATT and WTO decisions interpreting the 
term "necessary" under Article XX of the GATT and, in particular, from the decision of the Appellate 
Body in  Korea – Various Measures on Beef .55  According to the United States, these decisions 
clarified that alternatives that are only "theoretical"56—such as a  possible   negotiated outcome 
following consultations—cannot be regarded as "reasonably available".   
                                                      
52United States' appellant's submission, paras. 3 and 101. (footnote omitted) 
53Ibid., para. 136. 
54Ibid., para. 138. 
55Ibid., paras. 147-152. 
56Ibid., para. 152.  WT/DS285/AB/R 
 Page 13 
 
 
31. Furthermore, the United States argues that a  possible   negotiated outcome following 
consultations does not qualify as a le gitimate "alternative" in this c ase because it could not ensure the 
same level of protection vis-à-vis the remote s upply of gambling.  If the United States were to 
withdraw its prohibition and pursu e consultations instead, it could not guarantee that the risks 
associated with the remote supply of gambling  woul d not recur.  Such an outcome, according to the 
United States, cannot be reconciled with the finding of the Appellate Body in  EC – Asbestos   that a 
Member is not required to adopt a measure that woul d render that Member vulnerable to the very risks 
sought to be avoided by the alle gedly WTO-inconsistent measure. 
32. The United States additionally contends that th e mere fact that a Member made a specific 
commitment in its Schedule cannot, as the Pane l found, imply some obligation to carry out 
consultations if that measure is to be justified unde r Article XIV.  The Panel failed to explain how the 
inscription of the term "None" in the United States Schedule provided textual support for its 
conclusion.  Moreover, according to the United Stat es, the Panel's finding of a prerequisite of 
consultations is incompatible with  the opening text of Article XIV, which provides that "nothing in 
this Agreement"—including in the Schedules of Members—can prevent Members from adopting 
measures that meet the requirements of Article XIV. 
33. Finally, the United States asserts that the allege d failure to consult with Antigua was the sole 
basis for the Panel's findings that the United Stat es' measures are not provisionally justified under 
paragraph (a) or (c) of Article XIV.  Without th e requirement of consultations, then, the Appellate 
Body is left with the Panel's finding that the meas ures serve important interests and with the absence 
of any finding on a reasonably available alternative measure.  In this light, the United States argues, 
the Appellate Body has sufficient basis to complete the analysis and conclude that the United States' 
measures are provisionally justified under pa ragraphs (a) and (c) of Article XIV. 
34. For the foregoing reasons, the United States reque sts that, in the event that the Appellate 
Body reaches the issues under Article XIV, it rever se the Panel's findings under Article XIV(a) and 
XIV(c), complete the analysis, and find that th e Wire Act, the Travel, and the Illegal Gambling 
Business Act are "provisionally" justified under those provisions. 
(b) The Chapeau of Article XIV 
35. The United States claims that the Panel applie d the wrong legal standard when interpreting 
the chapeau of Article XIV of the GATS, becau se it required the United States to demonstrate 
"consistent" treatment of foreign a nd domestic supply of services.  The United States observes that the 
chapeau prohibits "arbitrary" and "unjustifiable" di scrimination, and "disguised restriction[s] on trade 
in services".  The United States argues that "inc onsistent" treatment as between services supplied WT/DS285/AB/R 
Page 14  
 
domestically and services supplied from other Members, in and of itself, does not necessarily 
constitute arbitrary or unjustifiable discrimination,  or a disguised restriction on trade in services.
57    
36. The United States additionally contends that the Panel improperly made the rebuttal for 
Antigua under the chapeau of Article XIV.  The United States emphasizes that, in its analysis under 
Article XIV, the Panel "recycled" certain evidence and argumentation brought forward by Antigua in 
the context of its national treatment claim under Article XVII58, as to which the Panel exercised 
judicial economy.  Given the distinct legal standard  of the chapeau—in particular, its focus only on 
discrimination that is "arbitrary" or "unjustifiable"—the United States argues that reliance on Antigua's argumentation and evidence in relation to  its national treatment claim is inapposite when 
analyzing the United States' defence under Article XIV.
59 
37. Furthermore, the United States alleges that, "[a]s a matter of law"60, the fact that three 
domestic service suppliers have not been prosecute d under United States law, and that an Antiguan 
supplier has been prosecuted, does no t rise to the level of "arbitrary or  unjustifiable discrimination" or 
a "disguised restriction on trade" under the chapeau of Article XIV, and the Panel erred in finding 
otherwise.  In addition, the United States contends that a relatively small sampling of cases, where a 
government has not prosecuted allegedly criminal  acts, is not probative because "neutral 
considerations", such as resource limitations, prevent prosecutors from pursuing  all  violations of the 
law in a given jurisdiction.61 
38. The United States also claims that the Panel faile d to satisfy its obligations under Article 11 
of the DSU in its evaluation of the evidence relating to the chapeau of Article XIV.  According to the 
United States, the Panel erred in assessing the United  States' enforcement of certain federal laws 
because the Panel did not take into account "uncontr overted" evidence of the overall enforcement of 
United States law.62  The Panel is said to have also erred by  failing to recognize that the Interstate 
Horseracing Act ("IHA") could not repeal pre-exis ting criminal statutes, including those challenged 
by Antigua and found by the Panel to be inc onsistent with Article XVI of the GATS.   
39. Should the Appellate Body reverse the Panel' s findings under the chapeau, the United States 
requests that the Appellate Body comp lete the analysis and find that th e Wire Act, the Travel Act, and 
                                                      
57United States' appellant's submission, para. 183. 
58Ibid., para. 188. 
59Ibid., para. 189. 
60Ibid., para. 184. 
61Ibid., para. 185. 
62Ibid., para. 194.  WT/DS285/AB/R 
 Page 15 
 
 
the Illegal Gambling Business Act meet the requirements of the chapeau of Article XIV and are thus 
justified under Article XIV of the GATS. 
5. "Practice" as a "Measure"  
40. The United States challenges the Panel's finding, in  the course of its analysis of the measures 
at issue, that "practice" can be considered an autonomous measure that can be challenged "in and of 
itself".63  The United States contends that, in arriving at  this finding, the Panel erred in two respects.  
First, it went beyond its terms of reference, as An tigua had not challenged any of the items that the 
Panel indicated could be considered "practice".  Secondly, the Panel based its conclusion that 
"practice" can be challenged "as such" on a mischar acterization of prior WTO decisions with respect 
to what constitutes a "measure" under WTO law.64  The United States therefore requests that the 
Appellate Body reverse this finding of the Panel. 
B. Arguments of Antigua – Appellee 
1. Antigua's  Prima Facie   Case  
41. Antigua requests the Appellate Body to uphol d the Panel's findings that Antigua made a 
prima facie  case of GATS-inconsistency with respect to the relevant federal and state statutes.  
Antigua argues that, although the Pa nel should have considered this case on the basis of the "total 
prohibition" that the United States maintains against the cross-border supply of gambling and betting 
services, Antigua had in any event made out its case under Article XVI with respect to discrete federal and state legislation.   
42. Antigua contends that, after searching through United States federal and state laws to identify 
those statutes it believed to be the source of th e prohibition on the cross-border supply of gambling 
and betting services, it provided the Panel with the text and a summary of each statute.  Antigua referred in its submissions to specific laws, such as the Wire Act, the Travel Act and the Illegal 
Gambling Business Act, as prohibiting the cross-bor der supply of gambling and betting services.  
Antigua emphasizes that it submitted evidence as to how the United States' authorities themselves 
understood various laws as operati ng to prohibit the cross-border supply of gambling services.  In 
addition, Antigua referred the Pa nel to secondary sources that c onfirmed this understanding.  
According to Antigua, the discussion and evidence it presented were sufficient to substantiate its 
                                                     
 
63United States' appellant's submission, para. 205 (quoting Panel Report, para. 6.197). 
64Ibid., paras. 209-211 (citing Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , 
para. 84;  Appellate Body Report, US – Countervailing Measures on Certain EC Products , paras. 12-16;  and 
Appellate Body Report, US – Carbon Steel , para. 157). WT/DS285/AB/R 
Page 16  
 
allegation that the United States acts inconsistently  with Article XVI of the GATS as a result of this 
prohibition.   
43. Antigua contests the argument that the United St ates has been denied a fair opportunity to 
defend itself in this case.  The United States  admitted on several occasions—including during 
consultations—that the cross-border supply of gambling and betting services is prohibited.  
Furthermore, the federal and state laws challenged by Antigua were identified at the outset of the 
dispute in Antigua's panel request.  As a result, Antigua contends, the United States was aware that it 
would be expected to defend itself with respect to those laws.   
44. As regards the United States' claim under Article  11 of the DSU, Antigua maintains that the 
Panel did not exceed its authority in de termining that Antigua had established a  prima facie  case.  In 
arguing to the contrary, Antigua submits, the Unite d States fails to recognize the discretion afforded 
panels in the assessment of parties'  prima facie  cases, as determined by relevant WTO decisions. 
45. Antigua accordingly requests that the Appellate  Body uphold the Panel's findings regarding 
the United States measures identified by Antigua as the subject of its challenge. 
2. United States' Schedule of Specific Commitments
 
46. Antigua requests the Appellate Body to uphold th e Panel's findings that the term "sporting" 
does not include gambling and that, consequent ly, the United States undertook a specific market 
access commitment in its Schedule with respect to gambling and betting services. 
47. Antigua argues that when examining the words of  a treaty, a treaty interpreter must seek to 
determine the "common intention" of the parties.  Although this should be done in accordance with 
Article 31 of the  Vienna Convention ,  Antigua submits that this provision should be regarded as  one 
"general rule of interpretation" rather than a hierarchical  sequence  of tests.65 
48. In Antigua's submission, the ordinary meaning of the word "sporting" does not include 
gambling and betting services.  Because a Schedule is a classification of mutually exclusive services categories, an entry in such a classification can have only one meaning.
66  Thus, it is inappropriate to 
interpret an entry in the United States' Schedule on  the basis of the entry's divergent dictionary 
definitions.  In order to determine the ordinary m eaning of the term "sporting" in the United States' 
Schedule, it is more appropriate to examine the term in the light of other classifications, such 
as W/120, the CPC, other classification systems, and other WTO Members' GATS Schedules.  
                                                      
65Antigua's appellee's submission, para. 44 (quoting Article 31 of the Vienna Convention ). 
66Ibid., para. 50.  WT/DS285/AB/R 
 Page 17 
 
 
Antigua submits that the Panel properly analyzed  these classifications and found that they do not 
support the conclusion that "sporting" includes gambling, a result confirmed by the fact that the 
United States could not point to  any  classification that uses the word "sporting" to refer to gambling.   
49. Given that, as the Panel itself observed, GATS Schedules simply cannot be understood 
without reference to the 1993 Scheduling Guidelines , Antigua urges the Appellate Body to uphold the 
Panel's findings that W/120 and the 1993 Scheduling Guidelines are "context" for the interpretation of 
the United States' Schedule and Article XVI of the GATS.  In addition, the revised Scheduling 
Guidelines of 2001 should be considered a "subsequent  agreement" and/or "subsequent practice", as 
provided for in Article 31(3)(a) and 31(3)(b) of the  Vienna Convention .  According to Antigua, 
the 2001 Scheduling Guidelines confirm that th e existing GATS Schedules were prepared in 
accordance with the 1993 Scheduling Guidelines and W/120.   
50. Antigua emphasizes that the United States' attemp t to distinguish the structure of the W/120 
from the meaning of its categories is without merit.   When a Member uses the structure of the W/120, 
Antigua argues, it "inevitably" uses the content of its categories, unless this Member indicates explicitly that it is di verging from that content with respect to a sector or subsector.
67  Antigua notes, 
in this respect, that the United States' Schedule in cludes no such indication with respect to "sporting" 
or "other recreational services".   
3. Article XVI:2(a) and XVI:2(c) of the GA TS – "limitations ... in the form of"  
51. Antigua requests the Appellate Body to u phold the Panel's findings with respect to 
Article XVI:2(a) and XVI:2(c) of the GATS.  A ccording to Antigua, a good faith interpretation of 
Article XVI:2 of the GATS, on the basis of its text , context, and object and purpose, reveals the flaws 
in the United States' understanding, and supports the Pa nel's interpretation of the relevant provisions.   
52. Antigua contests the United States' understanding of  the coverage of Article XVI:2 as limited 
to measures that take a certain "form", without re gard to the effects of those measures.  Instead, 
Antigua contends that the text of Article XVI: 2(a) and XVI:2(c) is intended to provide a broad 
description of the types of measures caught by these provisions.  For example, the word "whether" in 
these provisions suggests an illustrative list of pr ohibited measures, while the absence of any 
definition in the GATS of the terms "numerical quotas", "monopolies", "exclusive service suppliers", 
or "economic needs test" supports the view that thes e terms cannot be used to restrict the scope of 
Article XVI:2 to precisely defined "forms".68   
                                                      
67Antigua's appellee's submission, para. 52. 
68Ibid., para. 61. WT/DS285/AB/R 
Page 18  
 
53. Antigua emphasizes that the 1993 Scheduling Gu idelines and the Schedules of the United 
States and other WTO Members confirm that the United States' "narrow"
69 interpretation does not 
represent the common intention of the parties.  Antigua finds support in other Members' Schedules, 
including that of the United States, that list measures, including prohibitions, that are not caught by the United States' interpretation of Article XVI:2.
70  According to Antigua, this context validates the 
Panel's view that Article XVI:2(a) and XVI:2(c) capture measures that are equivalent to a zero quota.     
4. Article XIV of the GATS:  General Exceptions  
54. Antigua submits that the Panel did not err in  interpreting Article XIV of the GATS or in 
applying its interpretation to the Wire Act, the Travel Act, and the Illegal Gambling Business Act. 
(a) Paragraphs (a) and (c) of Article XIV:  "Necessary" 
55. According to Antigua, the Panel correctly fo und that the United States had not established 
that the laws in question were "n ecessary" within the meaning of Article XIV(a) and XIV(c) of the 
GATS.  Antigua argues that, contrary to the Unite d States' understanding of the Panel's conclusion, 
the Panel determined that the United States had failed to meet its burden of proof as to the necessity of 
the three federal laws, and that the lack of consu ltations with Antigua "was simply evidence of that 
failure".71 
56. With respect to Article XIV(a), Antigua subm its that the United States bore the burden of 
proving that its three federal laws were "necessary"  to protect its citizens from organized crime and 
underage gambling in the context of the services from Antigua at issue in this dispute, but the United 
States submitted no evidence in this regard.  Simila rly, as regards Article XIV(c), it was incumbent on 
the United States to prove that the three federal st atutes were "necessary" to secure compliance with 
the RICO statute in order to protect United States citizens against organized crime in the context of 
gambling and betting services from Antigua.  Again,  Antigua asserts, the United States submitted no 
evidence in this regard.   
57. Antigua underlines that the United States would have met its burden of proof had it proven 
that there were no WTO-consistent alternative me asures reasonably available that would provide the 
United States with the same level of protection.  Instead, the United States argued that it was for Antigua or the Panel to establish that one or more  reasonably available WTO- consistent alternatives 
                                                     
 
69Antigua's appellee's submission, para. 64. 
70Ibid.  Antigua submits a summary of listed measures of several Schedules in Annex B of its appellee's 
submission. 
71Ibid., para. 76.  WT/DS285/AB/R 
 Page 19 
 
 
to prohibition existed.72  In Antigua's submission, such a reversal of the burden of proof would not be 
justified in the light of previous WTO d ecisions examining affirmative defences.   
(b) The Chapeau of Article XIV 
58. Antigua recalls that it is for the party invoking an Article XIV defence to prove all elements 
of the defence, including the requirements laid down in the chapeau of Article XIV.  According to 
Antigua, the United States did not accomplish this task. 
59. Antigua submits that the Panel did not act in consistently with Article 11 of the DSU in 
finding that, in the light of the evidence of:  (i) the legality of inter-state remote access gambling 
under the IHA;  and (ii) the non-enforcement of la ws against major domestic suppliers of internet 
gambling services, the United States had not met its bur den of proof.  In particular, the IHA, on its 
face, allows interstate betting on horseracing over the telephone and over the internet.  The United 
States' arguments regarding this statute amount to an  assertion that the law has no legal effect and this, 
submits Antigua, is simply "not credible".73   
60. For these reasons, Antigua requests the Appellate Body to uphold the Panel's findings that the 
United States did not prove that the three federal la ws at issue were "necessary" within the terms of 
Article XIV(a) or XIV(c) of the GATS. 
5. "Practice" as a "Measure"  
61. With respect to the Panel's finding that practi ce "can be considered as an autonomous measure 
that can be challenged in and of itself"74, Antigua submits that this finding is obiter dictum .75  
Because, however, there may be circumstances under which the "practice" of a WTO Member should 
be considered as a measure for purposes of dispute resolution, Antigua request s the Appellate Body to 
dismiss the United States' appeal on this issue. 
C. Claims of Error by Antigua – Appellant 
1. The "Total Prohibition" as a "Measure"  
62. Antigua argues that the Panel erred by failing to assess Antigua's claims on the basis of the 
"total prohibition" of the cross-border supply of gambling and betting services in the United States.  
                                                      
72Antigua's appellee's submission, para. 89 (citing Un ited States' appellant's submission, paras. 152-153 
and 157, and footnote 227 to para. 153). 
73Ibid., para. 106. 
74Ibid., para. 108 (quoting Panel Report, para. 6.197). 
75Ibid., para. 109. WT/DS285/AB/R 
Page 20  
 
Antigua requests that the Appellate Body so find an d that it complete the analysis and find the "total 
prohibition" to be inconsistent with Article XVI of the GATS. 
63. According to Antigua, the Panel erroneously c oncluded that Antigua had not identified the 
"total prohibition" as a "measure" in the panel request .  Antigua states that its characterization of the 
prohibition as "total" was "nothing but a description"
76 that did not alter the focus of Antigua's 
challenge from the outset of the dispute, which was the undisputed prohibition on the cross-border 
supply of gambling and betting services.  Although it did not expressly state in the panel request that 
the "total prohibition" is a measure "in and of itsel f", Antigua submits that it clearly identified the 
"total prohibition" in the panel request in a ma nner consistent with panel requests previously 
examined by panels and the Appellate Body.  In the alternative, Antigua contends that any ambiguity 
regarding its challenge to the "total prohibition", in  and of itself, was resolved by reading its first 
submission to the Panel. 
64. Antigua also contests the Panel's legal conclusi on that, in any event, the "total prohibition" 
does not constitute a measure that could be challe nged in and of itself in WTO dispute settlement 
proceedings.  According to Antigua, the Panel misinterpreted  US – Corrosion-Resistant Steel Sunset 
Review   in finding that a measure must be an "instrument", and that the total prohibition "is a 
description of an effect rather than an instrument containing rules or norms."77  According to Antigua, 
in that case, the Appellate Body regarded  any  act or omission attributable to a WTO Member as a 
"measure".   
65. In addition, Antigua argues that the United States admitted not only the existence of the "total 
prohibition", but also its effect as prohibiting the cross-border supply of gambling and betting services 
in the United States.78  The Panel's failure to accord weight to  this admission is inconsistent with the 
Panel's obligation under Article 11 of the DSU to "m ake an objective assessment  of the facts of the 
case".  Antigua asserts that, on the basis of the United States' admission and the other evidence 
submitted to the Panel, it had met its burden of proving  the existence of the "total prohibition" and its 
effect, and that it was entitled to proceed in making out a case that the "total prohibition", as such, is 
inconsistent with the United Stat es' obligations under the GATS.   
2. Article XVI:1 of the GATS – Conditional Appeal  
66. Should the Appellate Body reverse the Panel' s legal interpretation of Article XVI:2(a) 
and XVI:2(c) of the GATS, as requested by the Unite d States in its appeal, Antigua seeks reversal of 
                                                      
76Antigua's opening statemen t at the oral hearing. 
77Antigua's other appellant's submission, para. 24 (referring to Panel Report, para. 6.176). 
78Ibid., para. 45.  WT/DS285/AB/R 
 Page 21 
 
 
the Panel's erroneous conclusion that Article XVI: 2 exhaustively defines those measures that would 
be inconsistent with the obligation in Article XVI:1.  As a result of the Panel's interpretation, Antigua 
argues, a Member would be permitted to maintain me asures inconsistent with the broad prohibition in 
Article XVI:1, provided only that they are not am ong those listed in Article XVI:2.  Antigua submits 
that such an interpretation reduces Article XVI:1 to an introductory clause with no legal effect of its 
own, contrary to the principles of treaty interpre tation.  Therefore, Antigua requests the Appellate 
Body to find that the Panel erred in concluding that  Article XVI:1 is limited by Article XVI:2 of the 
GATS and to complete the analysis by concluding th at the United States' measures are inconsistent 
with Article XVI:1, regardless of th eir consistency with Article XVI:2. 
3. Article XVI:2(a) and XVI:2(c) of the GATS – Measures Aimed at 
Consumers  
67. Antigua challenges the Panel's conclusion th at measures preventing consumers from using 
services supplied by a service provider in another WTO Member are not inconsistent with sub-
paragraph (a) or (c) of Article XVI:2.   
68. The Panel found that certain state laws of th e United States are not inconsistent with sub-
paragraph (a) or (c) of Article XV I:2 on the ground that they are not directed at "service suppliers", 
nor to "service operations" and "service output", but, rather, are directed at service consumers.  In Antigua's submission, if the Panel were correct in  its distinction between prohibitions directed at 
consumers  and those directed at  suppliers ,  then a Member that has made a full commitment on 
mode 1 would still be able to eliminate the possibility of cross-border supply of services, and thus 
circumvent that commitment, by imposing restricti ons on the ability of its citizens to consume those 
services.  It is argued that this would be an "absurd" result.
79 
69. Instead, for the same reasons that the Panel found  that a prohibition on the supply of a service 
falls within the scope of Article XVI:2(a) and XVI:2(c)—because it has the effect of a zero quota—
the Panel should have found that a prohibition on the consumption of a service also falls within those 
provisions.  A measure that imposes a prohibition on the consumption of services also has the effect of a zero quota on "service suppliers", "service opera tions" and "service output" within the meaning of 
Article XVI:2(a) and XVI:2(c).  Antigua submits that such an interpretation nevertheless preserves 
Members' right to regulate because a Member that wants to maintain such a prohibition may continue 
to do so, provided that the Member either clarifi es this in its Schedule or leaves the sector unbound. 
70. Accordingly, Antigua requests the Appellate B ody to reverse the findings of the Panel in 
paragraphs 6.383, 6.398, 6.402, and 6.406 of the Panel Report. 
                                                     
 
79Antigua's other appellant's submission, para. 57. WT/DS285/AB/R 
Page 22  
 
4. Article XIV of the GATS:  General Exceptions
 
71. Antigua challenges the Panel's decision to consid er the defence raised by the United States 
under Article XIV of the GATS.  Antigua also argu es that the Panel erroneously relieved the United 
States of its burden of proof with respect to Article  XIV.  In so doing, the Panel denied Antigua the 
right to respond to the defence, contrary to pr inciples of due process and equality of arms, and 
inconsistent with the Panel's duty under Article 11 of  the DSU.  In addition, the Panel erred in its 
evaluation under paragraphs (a) a nd (c) of Article XIV, as well as under the chapeau of Article XIV.  
Antigua contends that the Panel's errors in this  regard include a failure to make an objective 
assessment of the matter and the facts before it, contrary to Article 11 of the DSU. 
(a) The Panel's Consideration of the United States' Defence 
72. According to Antigua, the Panel should not have evaluated the United States' defence in this 
proceeding.  The United States' invocation of Article XIV only in its second written submission—and even then in an ambiguous manner—constituted an  "extraordinary delay" and a "simple litigation 
tactic", contrary to the obligation in Article 3.10 of the DSU for parties to participate in dispute 
settlement proceedings in good faith.
80  Antigua emphasizes that due process requires that a party be 
given fair opportunity to respond to claims made  and evidence submitted by the other party in a 
dispute, and that the delay of the United States in  invoking Article XIV prejudiced Antigua's ability to 
rebut the defence.  As an example of such pr ejudice, Antigua contends  that the evidence and 
argumentation relied upon by the Panel for much of  its discussion under the chapeau was originally 
presented by Antigua in the context of its claim unde r Article XVII of the GATS, relating to national 
treatment afforded to "like" foreign service suppliers .  In this regard, Antigua asserts that Article XVII 
is "a different GATS provision altogether with  completely different issues and context".81  Therefore, 
those arguments may not necessarily be the same as those Antigua would have advanced had it been 
provided the opportunity required by due process. 
(b) Burden of Proof 
73. Antigua asserts that because Article XIV is an affirmative defence, the United States bears the 
burden of proving it.  Yet, in this case, the Panel made the defence for the United States and, in doing 
so, failed to comply with its obligations under Article 11 of the DSU. 
74. With respect to Article XIV(a), Antigua claims  that the Panel added defences that the United 
States never made and created a c oherent argument in support of the United States' defence under this 
                                                      
80Antigua's other appellant's submission, para. 72. 
81Ibid., para. 76.  WT/DS285/AB/R 
 Page 23 
 
 
provision.  Although the United States raised only  two  concerns regarding public morals or public 
order—organized crime and underage gambling—the Panel examined Article XIV(a) in relation to 
five concerns, including money laundering, fraud, and h ealth concerns.  Thus, the Panel added to the 
United States' defence three concerns th at the United States itself never raised.82 
75. Antigua argues that the Panel also erred in taking into account health concerns in its 
Article XIV(a) discussion because such concerns ex pressly come under the scope of Article XIV(b).  
With respect to Article XIV(c), Antigua contends that the United States did not identify sufficiently 
the RICO statute and its relevance for the United States' defence under Article XIV(c).  Finally, 
Antigua claims that the Panel should not have addr essed the chapeau of Artic le XIV at all, because 
the argumentation and evidence contained in the Panel's discussion under the chapeau was not 
submitted by the United States in the context of its Article XIV defence. 
(c) Paragraph (a) of Article XIV 
76. With regard to Article XIV(a), Antigua submits th at the Panel erred in three respects:  (i) it 
failed to consider the entire text of Article XIV(a);  (ii) it improperly assessed the United States' defence under Article XIV(a), particularly in the light of the standard set out by the Appellate Body in 
Korea – Various Measures on Beef ;  and (iii) it failed to make an ob jective assessment of the evidence 
before it. 
77. Antigua asserts that the Panel's analysis of Artic le XIV(a) is incomplete because, although the 
Panel recognized the relevance of footnote 5 to Ar ticle XIV(a) when interpreting the provision, the 
Panel failed to assess whether the interests that th e United States purports to protect through its 
challenged measures meet the standard set forth in that footnote.   
78. Furthermore, Antigua contends that the Panel mi sinterpreted the Appellate Body's decision in 
Korea – Various Measures on Beef , with respect to the standards and the level of scrutiny to be 
employed by a panel reviewing a defence.  More specifically, in that decision, the Appellate Body 
established a "weighing and balancing" test with three particular components to assess whether a 
measure is "necessary".  Yet, the Panel's analysis of the three components in this dispute falls short of 
the demanding inquiry outlined by the Appellate Body  in that decision.  Mo st notably, according to 
Antigua, in the absence of a factual finding that the United States' concerns as regards "remote" 
gambling relate to "actually existing" risks, the measures at issue are not justifiable under 
Article XIV(a).
 83   
                                                      
82Antigua's other appellant's submission, para. 81. 
83Ibid., para. 96. WT/DS285/AB/R 
Page 24  
 
79. Antigua also argues that the Panel failed to make an objective assessment of the facts and 
evidence before it when applying the "weighing and balancing" test mandated by the Appellate Body 
in Korea – Various Measures on Beef .  First, in its analysis of whether the measures at issue are 
designed to protect public morals or maintain public order, the Panel considered only evidence 
submitted by the United States, without discussing or  taking into account the contrary evidence 
submitted by Antigua.  Secondly, as to the importance of the interests or values protected, the Panel 
"ignored" a contemporary assessment by the United States Supreme Court of the prevailing attitude in 
the United States towards gambling, while taking into account Congressional hearings and political 
statements made more than 40 years ago.
84  Thirdly, the Panel relied on no evidence at all when 
concluding that the challenged measures contributed to the realization of the ends that the United 
States claimed are pursued through those measures.  Fi nally, with respect to the trade impact of the 
measures, Antigua objects to the fact that none of the evidence cited by the Panel relates to factual 
matters involving the cross-border gambling and betting services provided specifically by Antigua.  Antigua adds that "substantially all" of the evid ence on this particular issue is "unsubstantiated 
statements of United States government employees or elected public officials"
85 that were taken into 
account by the Panel without considerati on of Antiguan evidence to the contrary. 
(d) Paragraph (c) of Article XIV 
80. Antigua argues that the Panel shoul d not have considered the RICO  statute in its evaluation of 
the United States' defence under Artic le XIV(c) because th e RICO statute is "wholly dependent" on a 
violation of other federal or stat e laws for its effective operation.86  The other federal statutes before 
the Panel were found to be inconsis tent with the GATS, and the Panel determined that no state laws 
were before it for considerati on under Article XIV(c).  As a resu lt, Antigua reasons, no other laws 
could form part of the Panel's evaluation under Artic le XIV(c).  Furthermore, the societal interest 
allegedly pursued by the RICO statute relates excl usively to organized crime, whereas the Panel had 
already determined that organized crime does not cons titute a societal interest of particularly greater 
significance in the context of the remote (as oppo sed to non-remote) supply of gambling services. 
                                                      
84Antigua's other appellant's submission, para. 110. 
85Ibid., para. 113. 
86Ibid., para. 127.  WT/DS285/AB/R 
 Page 25 
 
 
81. Finally, Antigua claims that, as in its analysis  under Article XIV(a), the Panel did not satisfy 
its obligations under Article 11 of the DSU, because the Panel's conclusions we re premised either on 
"unsubstantiated"87 or "conclusory"88 statements of United States government officials, or on no 
evidence at all. 
(e) The Chapeau of Article XIV 
82. With respect to the chapeau of Article XIV, An tigua argues that the Panel erred, first, in 
deciding to continue its evaluation of the United States' defence under the chapeau, even though the 
Panel had found that none of the fe deral laws was provisionally justif ied under paragraph (a) or (c) of 
Article XIV.  Secondly, Antigua contends that  the Panel improperly "segmented" the gambling 
industry and limited its discussion to the  remote   supply of gambling services.  Instead, the Panel 
should have examined how the United States addresses  the supply of gambling services with respect 
to the entire industry and compared this treatment with that given to foreign suppliers of gambling 
services.  Finally, Antigua alleges that the Panel fa iled to comply with its obligations under Article 11 
of the DSU by again drawing its conclusions on the basis of "unsubstantiated assertions"89 of the 
United States, rather than on the "independent"90 evidence submitted by Antigua, and thereby 
effectively "shift[ing]"91 the burden of proof to Antigua. 
83. For these reasons, Antigua requests the Appellate Body to find that the Panel erroneously 
considered the defence by the United States under Ar ticle XIV and, in doing so, also relieved the 
United States of the burden of justifying its measure s under Article XIV.  In the alternative, Antigua 
requests that the Appellate Body find that the Pa nel erred in its evaluation of the United States' 
defence under paragraphs (a) and (c) of Artic le XIV and the chapeau of Article XIV. 
D. Arguments by the United States – Appellee   
1. The "Total Prohibition" as a "Measure"  
84. The United States agrees with the Panel that Anti gua did not identify the "total prohibition" as 
such in its panel request and that, even if Anti gua had properly identified it, a "total prohibition" 
cannot be a "measure in and of itself" su bject to WTO dispute settlement proceedings. 
                                                      
87Antigua's other appellant's submission,  para. 133. 
88Ibid., paras. 136-137. 
89Ibid., para. 143. 
90Ibid. 
91Ibid., para. 144. WT/DS285/AB/R 
Page 26  
 
85. The United States submits that Antigua did not challenge, in its panel request, the "total 
prohibition" as a distinct measure because the pa nel request makes clear that, in discussing a 
"prohibition", Antigua was referring to the  effect   of one or more laws listed in the Annex.  According 
to the United States, therefore, the Panel correctly concluded that a challenge to the "total prohibition" 
as a distinct measure was beyond its terms of reference. 
86. The United States claims that the Panel's conc lusion—that the "total prohibition" cannot be 
deemed a single and autonomous measure that can be  challenged in and of itself—finds support in the 
record in this dispute as well as in the Appellate Body's reasoning in past disputes.  Both parties 
agreed before the Panel that the alleged "total  prohibition" was a description of the purported  effect   
of the laws at issue.
92  The effect of a measure may not it self become a "measure" subject to WTO 
dispute settlement.  The United States adds that the Panel's conclusion in this regard is also in line 
with the Appellate Body's analysis in  US – Oil Country Tubular Goods Sunset Reviews ,  because in 
this dispute, Antigua's interpretation of the effect of the United States law as a "total prohibition" has 
no "normative value" in United States municipal law.93   
87. The United States accordingly requests that th e Appellate Body reject Antigua's appeal 
relating to whether Antigua may rely on the "total  prohibition" as a measure challenged in and of 
itself in this dispute.  As a result, the United St ates submits, it is not necessary for the Appellate Body 
to complete the analysis on the consistency of the "total prohibition" with Article XVI of the GATS, 
as requested by Antigua. 
2. Article XVI:1 of the GATS – Conditional Appeal  
88. The United States requests that the Appellate Body uphold the Panel's finding that the only 
limitations falling within the scope of Article XVI  of the GATS are those listed in paragraph 2 of 
Article XVI.  According to the United States, Artic le XVI:2, on its face, exhaustively defines, by 
means of a "closed list", the limitations that cannot  be maintained by a Member that undertook a full 
market access commitment.94  If, as Antigua suggests, Article XVI:1 alone prohibits any limitation to 
the supply of services in the market of a Member, then  all  limitations would be covered by this 
Article.  Such an interpretation would render Article  XVI:2 ineffective.  Therefore, the United States 
requests the Appellate Body to find that the Panel di d not err in its interpretation of the relationship 
between Article XVI:1 and XVI:2 of the GATS.   
                                                      
92United States' appellee's submission, para . 16 (citing Panel Report, para. 6.176). 
93Ibid., para. 17. 
94Ibid., paras. 27-28.  WT/DS285/AB/R 
 Page 27 
 
 
3. Article XVI:2(a) and XVI:2(c) of the GATS – Measures Aimed at 
Consumers  
89. The United States supports the Panel's interpre tation that sub-paragraphs (a) and (c) of 
Article XVI:2 do not cover measures addressed to  consumers   of services rather than to service 
suppliers  or  output .  The United States emphasizes that sub- paragraphs (a) and (c) of Article XVI:2 
cover only the limitations that are precisely menti oned in their text—limitations on service suppliers, 
operations, or output—and that a pr ohibition on consumers should not be  read into the text of that 
provision.  Therefore, the United States requests th e Appellate Body to uphold the Panel's conclusion 
that sub-paragraphs (a) and (c) of  Article XVI:2 do not cover measures directed towards consumers of 
services. 
4. Article XIV of the GATS  
90. The United States requests that the Appellate Body  reject Antigua's appeal with respect to 
Article XIV of the GATS in its entirety.  In particular, the United States asserts that the Panel 
correctly decided to consider the United States' arguments under Article XIV, and the Panel did not 
make the defence for the United States.  The United States submits further that the Panel's evaluation 
of the United States' "concerns" under paragraph (a) of Article XIV was consistent with previous 
WTO decisions examining general exceptions, and th at the Panel properly recognized that the RICO 
statute operated independently of other federal a nd state laws.  With respect to the chapeau of 
Article XIV, the United States contends that Anti gua has failed to identify how the Panel erred in 
allegedly "segment[ing]" the industry.95 
(a) The Panel's Consideration of the United States' Defence 
91. According to the United States, the Panel pr operly considered the United States' defence 
under Article XIV.  The United States emphasizes that Antigua had sufficient opportunity to respond 
to the defence after the United States invoked Artic le XIV in its second written submission to the 
Panel.  The United States argues that this is confir med by the fact that Antigua made no allegation of 
prejudice to its interests as a result of the alle ged tardiness of the United States in raising its 
Article XIV defence.  The United States finds suppor t in the WTO decisions where it is established 
that the complaining party can bring new arguments in its second submission or even later. 96 
                                                      
95United States' appellee's submission, para. 78. 
96Ibid., para. 37 (citing Appellate Body Report, EC – Bananas III , para. 145;  and Appellate Body 
Report, Chile – Price Band System , paras. 154-162). WT/DS285/AB/R 
Page 28  
 
(b) Burden of Proof 
92. The United States agrees with Antigua that pa nels cannot make the case for a complaining 
party.  The United States argues that, contrary to  Antigua's arguments, the United States met its 
burden of proof and did not leave it to the Panel to  prove the Article XIV defence.  In addition, the 
United States contests Antigua's submission that the Panel acted inconsistently with the principles of 
due process and the equality of arms, and with Article 11 of the DSU.   
93. The United States asserts that it provided eviden ce of how the relevant statutes were enacted 
and the operation and purpose of each statute.  The United States also contends that it made 
arguments regarding the relevant  legal standards under Article XI V and provided argumentation and 
evidence that the specific measur es satisfy the legal requirements of an Article XIV defence. 
94. According to the United States, all five concer ns acknowledged by the Panel with respect to 
gambling activities had been identified by the United St ates in its submissions to the Panel.  Thus, in 
recognizing these concerns, the Panel did nothing more than what the United States requested it to do.  
With respect to the "health concerns", the United St ates asserts that the health risks associated with 
addiction to gambling fall within the scope of prot ection of public morals and/or public order under 
Article XIV(a), and the Panel was correct in so  finding.  Finally, regarding the chapeau of 
Article XIV, the United States asserts that it did al lege that the United States' measures satisfy the 
requirements set out in the chapeau of Article XIV and referred the Panel to evidence in support of its 
claim.
97   
(c) Paragraph (a) of Article XIV 
95. The United States disagrees with Antigua's alle gations of error regarding certain aspects of 
the Panel's analysis under paragraph (a) of Article XIV.  The United States contends that it provided 
specific evidence of grave threats to  public morals and public order, and made an argument that the 
evidence provided met the specific requirements of Article XIV(a), including its footnote 5.  
According to the United States, the Panel fully un derstood and applied the requirements laid down in 
footnote 5 of Article XIV, as is evident from its discussion in the Panel Report.  Furthermore, the 
Panel correctly applied the "weighing and balancin g" test from the Appellate Body's decision in 
Korea – Various Measures on Beef .  The United States argues that, in doing so, the Panel found, first, 
that the concerns identified by th e United States "actually did exist"98 with respect to the remote 
                                                      
97United States' appellee's submission, para. 48 (referring to United States' appellant's submission, 
para. 187, and United States' second submission to the Panel, paras. 117-122). 
98Ibid., para. 55.  WT/DS285/AB/R 
 Page 29 
 
 
supply of gambling services;  secondly, that prohibiti ng this activity contributes to the realization of 
the ends pursued;  and thirdly, that potential alternatives to the measures at issue existed.99   
(d) Paragraph (c) of Article XIV 
96. In the same vein, the United States argues that  the Appellate Body should dismiss Antigua's 
appeal with respect to the Panel's findings under Ar ticle XIV(c).  The United States contests Antigua's 
characterization that the RICO statute depends on other laws for its effective operation, stating instead that the RICO statute imposes criminal liability not  only for gambling under state laws, but also for 
other acts not related to gambling or to other pr ohibitions under the laws of the states.  Thus, 
according to the United States, the RICO statute "has independent meaning and protects independent 
interests and values apart from any other law."
100  In addition, the United States argues, the "ends 
pursued" by the RICO statute include remote supply of gambling as well as  organized crime, and 
Antigua is incorrect in its assumption that the "end s pursued" by a law being enforced must relate 
only to the precise service to which the enforcemen t measure applies.  Finally, the United States 
asserts that Antigua's claims under Article 11 of the DSU do not meet the "high standard of argumentation required of Article 11 claims"
101 and appear to hinge on the notion that the Panel was 
wrong to give weight to statements by United States government officials and testimony before 
Congress.   
(e) The Chapeau of Article XIV 
97. The United States requests that the Appellate Body  dismiss Antigua's appeal with respect to 
the chapeau of Article XIV of the GATS.  Accordi ng to the United States, Antigua did not explain in 
its other appellant's submission where and how the Panel allegedly "segmented" the industry, nor did 
Antigua provide a legal basis for its argument th at a panel may not segment an industry in its 
evaluation.  The United States also submits that Anti gua's claims with respect to the Panel's alleged 
failure to comply with Article 11 of the DSU do not meet the "high standard" required of successful 
claims under that provision relating to  a panel's assessment of evidence.102   
                                                      
99This last finding is challenged by the United States in its appellant's submission.  See supra , 
paras. 29-34. 
100United States' appellee's submission, para. 71. 
101Ibid., para. 76. 
102Ibid., para. 80. WT/DS285/AB/R 
Page 30  
 
E. Arguments of the Third Participants 
1. European Communities
 
98. The European Communities agrees with the Pane l's conclusions regarding the interpretation 
of the United States' Schedule of specific commitm ents.  The European Communities further supports 
the Panel's conclusion that Article XVI:2(a) and XVI:2(c) of the GATS prohibit measures that have 
the effect of a quota, even if they are not expressl y cast in the form of numerical ceilings.  In the 
European Communities' submission, however, the Pa nel erred in ruling that measures directed at 
consumers may not be limitations w ithin the terms of Article XVI:2(a) and XVI:2(c) and, therefore, 
the Appellate Body should correct this finding.  In addition, if the Appellate Body reaches the issue of 
the Panel's interpretation and application of Ar ticle XIV of the GATS, the European Communities 
would encourage it to review fully the Panel's reasoning. 
99. The European Communities contests the United Stat es' challenge to the Panel's interpretation 
of the United States' Schedule of specific comm itments.  The European Communities asserts that 
Members' Schedules form an integral part of the  WTO Agreement   and constitute an agreement of all 
the Members.  Therefore, the Panel correctly resorted to the interpretative rules of the Vienna 
Convention when evaluating the United St ates' commitments in its Schedule.  In particular, the 
European Communities argues, the Panel correctly followed Article 33 of the  Vienna Convention   in 
comparing the terms of the Schedule used in the French and Spanish texts. 
100. The European Communities disagrees, however, w ith the Panel's characterization of W/120 
and the 1993 Scheduling Guidelines.  According to the European Communities, the fact that Members 
entrusted the GATT Secretariat with producing a do cument, and that Members used such a document 
for negotiations, cannot render that document one produced  by the Members themselves .  Therefore, 
the European Communities submits, W/120 and the 1993 Scheduling Guidelin es are better understood 
as "preparatory work" within the meaning of Article 32 of the  Vienna Convention .  Nevertheless, 
according to the European Communities, qualif ying W/120 and the 1993 Scheduling Guidelines as 
preparatory work does not alter the Panel's conclu sion regarding the scope of the United States' 
commitments.   
101. The European Communities agrees with the Pane l that Article XVI:2(a) and XVI:2(c) cover 
measures that are not expressly cast in the fo rm of numerical ceilings, because a contrary 
interpretation would permit Members easily to evad e market access commitmen ts undertaken in their 
Schedules.  The European Communities argues, howev er, that the Panel erred in interpreting the 
scope of sub-paragraphs (a) and (c) of Article XVI:2.  The European Communities contends that the 
GATS covers not only measures regulating trade in ser vices, but also those measures "affecting" trade  WT/DS285/AB/R 
 Page 31 
 
 
in services.  Such a measure may include a prohibiti on on the consumption of a given service, which, 
although directed at consumers, has the effect of restricting the activity of suppliers.  The European 
Communities finds no limitation in sub-paragraph (a) or (c) that suggests that measures may not be 
covered "by reason of their impact".   
102. Regarding Article XIV of the GATS, the Europ ean Communities contends that this Article 
seeks to preserve the right of WTO Members to regulate the supply of services.  The European 
Communities contends that Article XIV is to be  interpreted in the light of the pertinent  acquis   with 
regard to Article XX of the GATT 1994, as the wording and function of the two Articles correspond 
closely.  Should the Appellate Body reach this i ssue, the European Communities requests that it make 
a "full review" of the Panel's reasoning and of the ju stification for the Article XIV defence, based on 
the uncontested facts and evidence on record.103   
103. The European Communiti es asserts that consultations with other Members "cannot be an 
absolute condition to justify a measure under GATS Article XIV".104  Contrary to the finding of the 
Panel, neither Article XIV nor the United States' market access commitment in its Schedule supports 
such a conclusion.  Nevertheless, a respondent ma y rely on a good faith attempt to negotiate a 
resolution with other Members as evidence in support of  its claim that it explored reasonably available 
WTO-consistent alternatives before  adopting a particular WTO-incons istent measure.  According to 
the European Communities, however, such evidence would be insufficien t, on its own, to show that 
reasonable alternatives were exhausted. 
104. With respect to the Panel's conclusions on the chapeau of Article XIV, the European 
Communities emphasizes that evidence of a lim ited number of cases of non-enforcement against 
domestic business operators in comparable situations would not  ipso facto   rebut a  prima facie   case 
of consistency of a measure with the chapeau.  The European Communities c ontrasts that situation 
with one where a complaining party demonstrates a di scernible pattern of application of a measure to 
the detriment of foreign operators in comparable situations.  Although enforcement in all cases may 
not be practicable for a number of legitimate reasons, Members' authorities can and should be 
expected to intervene and correct enforcement th at has occurred on a discriminatory basis against 
foreign operators. 
                                                      
103European Communities' third participant's submission, para. 49. 
104Ibid., paras. 14 and 91. WT/DS285/AB/R 
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2. Japan
 
105. Japan agrees with the Panel's conclusions rela ting to the commitments in the United States' 
Schedule and the interpretation of Article XVI:1 a nd XVI:2.  Japan contends that the Panel erred, 
however, with respect to its interpreta tion and application of Article XIV. 
106. Japan submits that W/120 and the 1993 Scheduli ng Guidelines are "context" or "preparatory 
work" for the interpretation of Members' GATS Sche dules.  In the absence of language in the United 
States' Schedule expressly indicating a departure from W/120 or providing an alternative definition, 
the Panel was correct to turn to W/120 and the corresponding CPC numbers in order to give meaning 
to the terms in the United States' Schedule.  In doing so, however, the Panel should not have referred 
to French and Spanish translations of "sporting", because the United States' Schedule clearly indicates 
it to be "authentic in English only".  Neverthel ess, Japan supports the Panel's conclusion that the 
United States undertook in its Schedule a commi tment regarding gambling and betting services. 
107. Japan submits that the Panel properly unders tood the relationship between Article XVI:1 
and XVI:2, namely, that the limitations specified in Article XVI:2 are exhaustive of the measures 
covered by Article XVI:1.  In addition, Japan agrees with the Panel that measures having the  effect —
even if not the form—of a quota may also be prohib ited by virtue of sub-pa ragraphs (a) and (c) of 
Article XVI:2, but that these provisions do not cover measures imposed on service  consumers   rather 
than on "service suppliers", "service operations", or "service output".   
108. Japan argues that the Panel erred in its in terpretation of Article XIV by imposing a 
requirement that a Member must "explore and exhaust"105 less trade-restrictive alternatives to the 
measure at issue.  Furthermore, the Panel erroneous ly concluded that a Member is obliged to engage 
in multilateral consultations, in cluding with non-complaining Me mbers, to identify less trade-
restrictive alternatives prior to and during applica tion of the challenged measure.  Japan submits that 
these conclusions of the Panel, if upheld by th e Appellate Body, would undermine Members' rights 
and obligations under the WTO Agreement . 
109. According to Japan, the focus of GATT and WTO decisions regarding Article XX of the 
GATT 1994 has been whether, as a matter of the obj ective evidence before the panel, reasonably 
available alternative measures  existed  not the extent to which they have been  explored  before 
adopting the challenged measure.  The Panel, how ever, disregarded this approach and added the 
"explore and exhaust" standard as a new "open-ended requirement".106  According to Japan, this 
resulted from the Panel's misinterpretation of the Appellate Body's decision in Korea – Various 
                                                      
105Japan's third participant's submission, para. 8 (quoting Panel Report, para. 6.496).   
106Ibid., para. 12.  WT/DS285/AB/R 
 Page 33 
 
 
Measures on Beef  and the Panel's improper reliance on the unadopted report of the GATT panel in 
US – Tuna (Mexico) .  Japan emphasizes that this new requirement would go well beyond the 
negotiated commitments of WTO Members. 
110. Japan also disagrees with the Panel's findings  that Members invoking the affirmative defence 
of Article XIV must enter into multilateral consultations  to identify less trade-r estrictive alternatives.  
According to Japan, the Panel's appr oach is a "substantial departure"107 from the obligations contained 
in the covered agreements and from the relevant GATT and WTO decisions. 
3. Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu  
111. The Separate Customs Territory of Taiw an, Penghu, Kinmen and Matsu requests the 
Appellate Body to reverse the Panel's findings that  the prohibitions of Article XVI:2(a) and XVI:2(c) 
include all measures that may have an "effect" on the Member's market access commitments.  Furthermore, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu requests that the 
Appellate Body reverse the Panel's erroneous c onclusion under Article XIV(a) and XIV(c) that 
Members are required to consult with other Member s concerning possible alternative WTO-consistent 
measures.   
112. The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu supports the United 
States' reading of Article XVI:2(a) and XVI:2(c).  Th e text of these provisions suggests that the treaty 
drafters did not intend to cover  all  measures that can have an effect on market access.  Although the 
Panel appeared to recognize this understanding when  it found that Article VI and Article XVI are 
mutually exclusive provisions, the Panel "contradict[ed]"
108 itself by subsequently concluding that a 
measure with  any  effect on market access falls within the scope of Article XVI:2.  Furthermore, the 
Panel disregarded the fact that the United States' measures " in totality   regulate the means of supply 
for a specific sector, rather than creating a quota system" for foreign service suppliers, as would be 
required in order to bring the measures within  the text of Article XVI:2(a) and XVI:2(c).109 
113. In addition, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu disagrees 
with the Panel's interpretation of the term "neces sary" in Article XIV(a) and (c) as requiring Members 
to conduct consultations with other Members to id entify alternative WTO-consistent measures.  The 
Panel erroneously found that the standard for th e "necessity" test in paragraphs (a) and (c) of 
Article XIV is whether a reasonably available WTO- consistent alternative has been "explored and 
                                                      
107Japan's third participant's submission, para. 14. 
108Third participant's submission of the Separate Cu stoms Territory of Taiwan, Penghu, Kinmen and 
Matsu, para. 6. 
109Ibid., para. 9. (original emphasis) WT/DS285/AB/R 
Page 34  
 
exhausted"
110 by the Member in question.  This interpre tation contravenes the Appellate Body rulings 
in  EC – Asbestos   and  Korea – Various Measures on Beef .  Based on this err oneous understanding of 
the "necessity" requirement, the Panel constructed a si milarly erroneous requireme nt of consultations.  
In addition, the Panel erred in basing its conclusion,  in part, on the fact that a commitment has been 
undertaken in the United States' Schedule.  The Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu asserts that Article XIV allows  Members to deviate not only from their general 
obligations, but also from their specific commitments,  in order to pursue legitimate national objectives 
through measures that would otherwi se be inconsistent with the GATS. 
III. Issues Raised in This Appeal 
114. The following issues are ra ised in this appeal: 
(A) with respect to the measures at issue , 
(i) whether the Panel erred in finding that the "total prohibition on the cross-
border supply of gambling and betting services" alleged by Antigua was 
neither capable of constituting an autonomous measure that can be 
challenged in and of itself, nor identif ied as a measure in Antigua's request 
for the establishment of a panel;  
(ii) whether the Panel erred in examini ng the consistency of the following 
measures with the United States' obligati ons under Article XVI of the GATS:   
(a) Federal laws: 
(1) Section 1084 of Title 18 of the United States Code (the 
"Wire Act");   
(2) Section 1952 of Title 18 of the United States Code (the 
"Travel Act");  and 
(3) Section 1955 of Title 18 of the United States Code (the 
"Illegal Gambling Business Act", or "IGBA"). 
                                                      
110Third participant's submission of the Separate Cu stoms Territory of Taiwan, Penghu, Kinmen and 
Matsu, para. 13.  WT/DS285/AB/R 
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(b) State laws: 
(1) Colorado:  Section 18-10-103 of the Colorado Revised 
Statutes;   
(2) Louisiana:  Section 14:90.3 of the Louisiana Revised Statutes 
(Annotated); 
(3) Massachusetts:  Section 17A of chapter 271 of the Annotated 
Laws of Massachusetts; 
(4) Minnesota:  Section 609.755(1) and Subdivisions 2-3 of 
Section 609.75 of the Minnesota Statutes (Annotated); 
(5) New Jersey:  Paragraph 2 of S ection VII of Article 4 of the 
New Jersey Constitution, and Section 2A:40-1 of the New 
Jersey Code; 
(6) New York:  Section 9 of Article I of the New York 
Constitution and Section 5-401 of the New York General 
Obligations Law; 
(7) South Dakota:  Sections 22-25A-1 through 22-25A-15 of the 
South Dakota Codified Laws;  and 
(8) Utah:  Section 76-10-1102 of the Utah Code (Annotated); 
(iii) whether, by undertaking such an examination of the above measures, the 
Panel acted inconsistently with its ob ligations under Article 11 of the DSU; 
(B) with respect to the United States' GATS Schedule , 
(i) whether the Panel erred in finding that subsector 10.D of the United States' 
GATS Schedule includes specific commitmen ts with respect to gambling and 
betting services; 
(C) with respect to Article XVI of the GATS , 
(i) whether the Panel erred in its interpreta tion of sub-paragraphs (a) and (c) of 
Article XVI:2 of the GATS and, in particular: WT/DS285/AB/R 
Page 36  
 
(a) in finding that a prohibition on the remote supply of gambling and 
betting services constitutes a "zero quota" on the supply of such 
services by particular means, and that such a "zero quota" is a 
limitation that falls within su b-paragraphs (a) and (c) of 
Article XVI:2;    
(b) in finding that measures imposing criminal liability on  consumers   of 
cross-border gambling and betting services are not inconsistent with 
sub-paragraphs (a) and (c) of Article  XVI:2 and, in finding for that 
reason, that the relevant laws of the states of Colorado, Minnesota, New Jersey, and New York are not inconsistent with those provisions;
  
(ii) if the Appellate Body reverses the Panel' s interpretation of sub-paragraphs (a) 
and (c) of Article XVI:2, then whethe r the Panel erred in finding that the 
restrictions on market access that are prohibited by Article XVI are limited to those listed in Article XVI:2;  and 
(iii) whether the Panel erred in applying its interpretation of Article XVI to 
relevant United States federal and state la ws so as to find them inconsistent 
with the United States' obligations under Article XVI:1 a nd sub-paragraphs 
(a) and (c) of Article XVI:2; 
(D) with respect to Article XIV of the GATS
, 
(i) whether, in considering the United Stat es' defence under Article XIV, and in 
its analysis under that provision, the Panel failed to satisfy its obligations 
under Article 11 of the DSU;   
(ii) whether the Panel improperly allo cated the burden of proof under 
Article XIV; 
(iii) whether the Panel erred in finding that the United States did not demonstrate 
that the Wire Act, the Travel Act, and the IGBA are necessary to protect 
public morals or to maintain publ ic order within the meaning of 
Article XIV(a); 
(iv) whether the Panel erred in finding that the United States did not demonstrate 
that the Wire Act, the Travel Act,  and the IGBA are necessary to secure  WT/DS285/AB/R 
 Page 37 
 
 
compliance with laws or regulations which are not inconsistent with the 
GATS, within the meaning of Article XIV(c);  and 
(v) whether the Panel erred in finding that the United States did not demonstrate 
that the Wire Act, the Travel Act, and the IGBA satisfy the requirements of the chapeau of Article XIV.   
IV. Measures at Issue 
115. We begin with the participants' appeals relating to  the measures at issue.  First, we review the 
Panel's finding that the "'total prohibition' on the cross-border supply of gambling and betting 
services" (the "total prohibition"
111) cannot constitute an autonomous measure that can be challenged 
per se .112  Next, we consider whether the Panel erred in stating that "'practice' can be considered as an 
autonomous measure that can be challenged in and of itself".113  Finally, we evaluate the United 
States' allegation that Antigua failed to make a  prima facie   case of inconsistency with Article XVI 
with respect to certain federal and state laws and that, therefore, the Panel should not have ruled on 
these claims.   
A. "Total Prohibition" as a Measure 
116. In its panel request, Antigua identified the "total prohibition" as the "effect" of various United 
States federal and state laws.114   In its first written submission, Antigua claimed that it was not 
necessary to show that these laws produced the e ffect of a "total prohibition" because the United 
States Ambassador had acknowledged, during the DS B meeting considering Antigua's first panel 
request, the existence of such a prohibition.115  Therefore, Antigua asserted, "[t]he subject of this 
dispute is the  total prohibition on the cross-border supply of gambling and betting services— and the 
parties are in agreement as to the ex istence of that total prohibition."116  
117. In the course of responding to a United States request for preliminary rulings, prompted by 
alleged deficiencies in Antigua's description of th e measures it was challenging, the Panel stated:   
                                                      
111The Panel refers throughout the Panel Report to th e "'total prohibition' on the cross-border supply of 
gambling and betting services" as the "total prohibitio n". (See, for example, Panel Report, paras. 6.139 
and 6.154)  In this Report we use the term "total prohibition" in the same manner. 
112Panel Report, para. 6.175. 
113Ibid., para. 6.197. 
114Request for Establishment of a Panel by Antigua and Barbuda, WT/DS285/2, 13 June 2003, p. 1. 
115Antigua's first written submission to the Panel, para. 136 (citing Minutes of the DSB Meeting held 
on 24 June 2003, WT/DSB/M/151, p. 11). 
116Ibid., para. 136. (original emphasis) WT/DS285/AB/R 
Page 38  
 
Antigua and Barbuda emphasised that it is effectively challenging the overall and cumulative effect of vari ous federal and state laws which, 
together with various policy st atements and other governmental 
actions, constitute a complete prohib ition of the cross-border supply 
of gambling and betting services.
117    
In its responses to the Panel's first set of questi ons, and in its second written submission to the Panel, 
Antigua asserted that it was challenging the "total  prohibition" as a "measure in and of itself".118  
Antigua disputed the United States' contention th at the "total prohibition" could not constitute a 
measure  per se   for purposes of WTO dispute settlement.119 
118. In its report, the Panel found that, "in the ci rcumstances of this case", a "total prohibition" 
could not constitute a "measure"  per se .120  The Panel based its conclusion on three factors.  First, the 
Panel found that the "total prohibition" did not cons titute an "instrument containing rules or norms".121  
Secondly, the Panel stated that Antigua had not suff iciently identified the "total prohibition" in its 
panel request as a measure at issue, including the preci se relevant United States laws that give rise to 
this prohibition.122  Thirdly, the Panel stated that it "fail[ed] to see how the United States could be 
requested to implement a DSB recommendation to br ing a 'prohibition' into compliance with the 
GATS pursuant to Article 19.1 of the DSU when an imprecisely defined 'puzzle' of laws forms the 
basis of the 'total prohibition'."123   
119. Antigua appeals the Panel's finding and emph asizes that Article XXVIII(a) of the GATS 
defines a "measure" broadly, as do the Appellate Body's decisions in  US – Corrosion-Resistant Steel 
Sunset Review   and  US – Oil Country Tubular Goods Sunset Reviews .  Antigua also relies on the 
alleged "concessions"124 made by the United States Ambassador during DSB meetings in her 
statements responding to Antigua's panel requests.  An tigua argues that, in the light of this statement, 
the Panel erred in not proceeding to evaluate Antigua's challenge on the basis of the "total 
prohibition".  Antigua therefore requests the Appe llate Body to reverse the Panel's finding that 
                                                      
117Panel's decision on the United States' request for preliminary rulings, para. 17, Panel Report, p. B-4.  
The Panel did not grant the United States' request to invite Antigua to file another submission detailing with 
greater specificity the measures being challenged.  The Panel also made no ruling relating to the "total prohibition" as a measure per se . 
118Antigua's response to Question 10 posed by the Panel, Panel Report, p. C-34;  Antigua's second 
written submission to the Panel, para. 8. 
119Antigua's second written submission to the Panel, paras. 9-18. 
120Panel Report, para. 6.175. 
121Ibid., 6.176 (citing Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 81-
82 and 88). 
122Ibid., paras. 6.177-6.180. 
123Ibid., para. 6.182 (quoting Antigua's response to Question 32 posed by the Panel, Panel Report,  
p. C-58). 
124Antigua's other appellant's submission, para. 48.  WT/DS285/AB/R 
 Page 39 
 
 
Antigua was not entitled to rely on the "total prohibition" as a measure  per se   in this dispute.  
Antigua further requests the Appellate Body to comple te the analysis with respect to the consistency 
of the "total prohibition" with Article XVI.125 
120. The question before us, therefore, is whether an  alleged "total prohibition" on the cross-border 
supply of gambling and betting services constitutes a measure that may be challenged under the 
GATS.126 
121. The DSU provides for the "prompt settlement" of  situations where Members consider that 
their benefits under the covered agre ements "are being impaired by  measures   taken by another 
Member".127  Two elements of this reference to "measures" that may be the subject of dispute 
settlement are relevant.  First, as the Appellate Bo dy has stated, a "nexus" must exist between the 
responding Member and the "measure", such that  the "measure"—whether an act or omission—must 
be "attributable" to that Member.128  Secondly, the "measure" must be the  source   of the alleged 
impairment, which is in turn the  effect   resulting from the existence or operation of the "measure". 
122. Similarly, consultations at the outset of a dispute are based on:   
... measures affecting the operation of any covered agreement taken 
within the territory [of the responding Member].129 
This provision contemplates that "measures" th emselves will "affect" the operation of a covered 
agreement.  Finally, we note that this distinction between measures and their effects is also evident in 
the scope of application of the GATS, namely, to "measures by Members affecting trade in 
services".130   
123. We are therefore of the view that the DSU a nd the GATS focus on "measures" as the subject 
of challenge in WTO dispute settlement.  To the extent that a Member's complaint centres on the 
effects of an action taken by another Member, that complaint must nevertheless be brought as a 
challenge to the  measure   that is the source of the alleged effects.   
                                                      
125Antigua's other appellant's submission, para. 51. 
126Panel Report, para. 6.175. 
127Article 3.3 of the DSU. (emphasis added) 
128Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 81. 
129Article 4.2 of the DSU.  
130Article I:1 of the GATS. WT/DS285/AB/R 
Page 40  
 
124. Viewed in this light, the "total  prohibition" described by Antigua  does not, in itself, constitute 
a "measure".  As Antigua acknowledged before the Panel
131 and on appeal132, the "total prohibition" is 
the  collective effect   of the operation of several state and federal laws of the United States.  And it is 
the "total prohibition" itself—as the  effect   of the underlying laws—that constitutes the alleged 
impairment of Antigua's benefits under the GATS.   
125. We note also that, if the "total prohibition" were a measure, a complaining party could fulfil 
its obligation to identify the "specifi c measure at issue", pursuant to Ar ticle 6.2 of the DSU, merely by 
explicitly mentioning the "prohibition".  Yet, without knowing the precise source of the "prohibition", a responding party would not be in a position to prepar e adequately its defence, particularly where, as 
here, it is alleged that numerous  federal and state laws underlie the "total prohibition".   
126. Therefore, we conclude that, without demonstrating the source of the prohibition, a 
complaining party may not challenge a "total prohibition" as a "measure",  per se , in dispute 
settlement proceedings under the GATS.  Accordingly, we  uphold   the Panel's finding, in paragraph 
6.175 of the Panel Report, that "the alleged 'tot al prohibition' on the cross-border supply of gambling 
and betting services describes the alleged effect of an  imprecisely defined list of legislative provisions 
and other instruments and cannot constitute a single and autonomous 'measure' that can be challenged 
in and of itself". 
127. Antigua also contests the Panel's finding that Anti gua could not rely on the "total prohibition" 
as a measure in this dispute because Antigua had failed to identify such a measure in its panel 
request.
133  Having found that, in any event, the "total prohibition", as posited by Antigua, is not a 
measure that can be challenged in itself, we  need not rule   on whether Antigua's panel request 
identifies the "total prohibition" as a specific measure at issue in this dispute, as would be required by 
Article 6.2 of the DSU. 
128. Finally, Antigua challenges, under Article 11 of  the DSU, the Panel's failure to accord 
sufficient weight to the alleged United States admissi on as to the existence of a "total prohibition".  
Antigua advances this contention in the context of its  broader claim on appeal that the Panel erred in 
not considering the "total prohibition" as "measure".  Because, however, we have upheld this finding  
                                                      
131See page 1 of Antigua's Request for the Establishment of a Panel, supra , footnote 114;  Antigua's 
response to Question 10 posed by the Panel, Panel Repor t, p. C-34;  Antigua's first written submission to the 
Panel, paras. 140-143.   
132Antigua's other appellant's submission, paras. 5, 43, and 45;  Antigua's opening statement at the oral 
hearing. 
133Panel Report, para. 6.171.  WT/DS285/AB/R 
 Page 41 
 
 
of the Panel, we  need not consider   whether the Panel satisfied its duties under Article 11 of the DSU, 
in its treatment of the alleged "admission" by the United States. 
B. "Practice" as a Measure 
129. In the course of examining what measures Antigua  was challenging in this dispute, the Panel 
relied on certain Appellate Body deci sions in support of its view that "'practice' can be considered as 
an autonomous measure that can be  challenged in and of itself".134  The Panel then observed that 
certain acts identified by Antigua could constitute "p ractices", as that term had been understood by the 
panel in  US – Corrosion-Resistant Steel Sunset Review .  However, based on Antigua's clarification in 
its comments to the United States' request for prel iminary rulings, the Panel concluded that Antigua 
was "not challenging [any] practice[] 'as such'".135   
130. The United States challenges the Panel's view th at "practice" may be challenged in and of 
itself.136  Antigua agrees with the Panel that "practi ce" can be challenged, as such, in WTO dispute 
settlement, but submits that in this case "this issue appeared to be without any real context" and, 
therefore, that the Appellate Body need not pronounce on it.137 
131. We disagree with the participants' characteriza tion of the Panel's statement on "practice", in 
paragraph 6.197 of the Panel Report, as a "finding" of the Panel.138  The Panel itself acknowledged 
that, in any case, Antigua was not challenging a practi ce, as such.  In this light, the Panel's statement 
on "practice", in our view, was a mere  obiter dictum ,  and we need not rule on it. 
132. We nevertheless express our disagreement w ith the Panel's understanding of previous 
Appellate Body decisions.  The Appellate Body has  not,  to date, pronounced upon the issue of 
whether "practice" may be challenged, as su ch, as a "measure" in WTO dispute settlement.139   
                                                      
134Panel Report, para. 6.197 (citing Appellate Body Report, US – Corrosion-Resistant Steel Sunset 
Review , para. 97;  Appellate Body Report, US – Carbon Steel , para. 157;  and Appellate Body Report, US – 
Countervailing Measures on Certain EC Products , para. 162). 
135Ibid., para. 6.198. 
136United States' appellant's submission, para. 205. 
137Antigua's response to questioning at the oral hearing. 
138See also Appellate Body Report, US – Wool Shirts and Blouses, p. 17, DSR 1997:I, 323, at 338. 
139Indeed, this was said explicitly in paragraph 220 of the Appellate Body Report in  US – Oil Country 
Tubular Goods Sunset Reviews . WT/DS285/AB/R 
Page 42  
 
C. Antigua's Prima Facie Case 
133. We examine next the United States' claim on appeal that Antigua failed to establish a  prima 
facie   case of inconsistency with Article XVI of the GA TS, with respect to the eight state laws and the 
three federal laws that the Panel determined were the measures that it should examine.   
134. Antigua's panel request listed nine federal la ws and eighty-four other laws from all fifty 
states, as well as from the District of Columbia, Guam, Puerto Rico, and the United States Virgin 
Islands.
140  In seeking to identify, from this list, the measures that were the subject of Antigua's 
claims, the Panel explained that it had: 
... perused all of Antigua's submi ssions, including footnotes to those 
submissions and exhibits submitte d by Antigua, with a view to 
identifying which of the 93 laws lis ted in its Panel request we should 
consider in determining whether or not the United States is in violation of its obligations under the GATS.
141   
135. The Panel found that certain state laws that had been mentioned by Antigua in its 
submissions, but which were  not  identified in the panel request, were not properly before the 
Panel.142  The Panel also found that certain state and federal laws, although mentioned in the panel 
request, had been only briefly discussed in summaries attached to the texts of the laws submitted by 
Antigua.143  In the Panel's view, these brief summaries were inadequate to explain how the laws 
allegedly resulted in a GATS-inconsistent pr ohibition on the cross-border supply of gambling 
services.144   
136. The Panel then reviewed laws that had been mentioned in the panel request  and  that were 
discussed in Antigua's submissions.  The Panel concl uded that the Wire Act, the Travel Act, and the 
IGBA were identified sufficiently by Antigua becau se Antigua's "discussions indicate[d] according to 
which particular provisions and how the laws a llegedly result in a prohibition on the cross-border 
supply of gambling and betting services."145  On the same basis, the Pa nel determined that Antigua 
had identified as part of its case certain laws of Colorado, Louisiana, Massachusetts, Minnesota, New 
Jersey, New York, South Dakota, and Utah.146 
                                                      
140See pages 3 to 7 of Antigua's Request for Establishment of a Panel, supra , footnote 114.   
141Panel Report, para. 6.209. 
142Ibid., para. 6.214. 
143Ibid., para. 6.216. 
144Ibid., para. 6.217. 
145Ibid., para. 6.223. 
146Ibid., paras. 6.226, 6.229, 6.232, 6.235, 6.239, 6.242, 6.245, and 6.248.  WT/DS285/AB/R 
 Page 43 
 
 
137. The United States contends that, in taking this  approach, the Panel itself improperly made 
Antigua's  prima facie   case of inconsistency with Article XVI of the GATS.  The United States 
claims that Antigua did not argue before the Panel how the laws eventually selected for review by the 
Panel constituted a "total prohibition" on the cross- border supply of gambling services.  Finally, the 
United States argues, as Antigua's case throughout the panel proceedings was based on the existence 
of a "total prohibition", Antigua's arguments focused on  allegations that the "total prohibition" is itself 
inconsistent with various provisions  of the GATS.  According to the United States, this meant that 
Antigua failed to allege that any of the  individual  measures discussed by the Panel is inconsistent 
with Article XVI of the GATS.   
138. The complaining party bears the burden of proving an inconsistency with specific provisions 
of the covered agreements.147  With respect to arguments and the production of evidence, we note the 
following statement of the Appellate Body in US – Carbon Steel : 
The party asserting that another party's municipal law, as such, is 
inconsistent with relevant treat y obligations bears the burden of 
introducing evidence as to the scope and meaning of such law to 
substantiate that assertion.  Such evidence will typically be produced 
in the form of the text of the relevant legislation or legal instruments, which may be supported, as appropriate, by evidence of the consistent application of such la ws, the pronouncements of domestic 
courts on the meaning of such laws , the opinions of legal experts and 
the writings of recognized scholars.
148  (footnote omitted) 
139. Where the complaining party has established its  prima facie  case, it is then for the 
responding party to rebut it.149  A panel errs when it rules on a cl aim for which the complaining party 
has failed to make a  prima facie  case.150   
140. A  prima facie  case must be based on "evidence  and  legal argument" put forward by the 
complaining party in relation to  each  of the elements of the claim.151  A complaining party may not 
                                                      
147Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US II) , para. 66. 
148Appellate Body Report, US – Carbon Steel , para. 157 (citing Appellate Body Report, US – Wool 
Shirts and Blouses , p. 14, DSR 1997:I, 323, at 335). 
149Appellate Body Report, EC – Hormones , para. 98;  Appellate Body Report, US – Wool Shirts and 
Blouses , p. 14, DSR 1997:I, 323, at 335. 
150Appellate Body Report, Japan – Agricultural Products II , para. 129. 
151Appellate Body Report, US – Wool Shirts and Blouses , p. 16, DSR 1997:I, 323, at 336. (emphasis 
added)  As not every claim of WTO-inconsistency will consist of the same elements, "the nature and scope of 
evidence required to establish a prima facie   case 'will necessarily vary from measure to measure, provision to 
provision, and case to case'". (Appellate Body Report, Japan – Apples , para. 159 (quoting Appellate Body 
Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323, at 335)) WT/DS285/AB/R 
Page 44  
 
simply submit evidence and expect the panel to divine from it a claim of WTO-inconsistency.
152  Nor 
may a complaining party simply allege facts without relating them to  its legal arguments. 
141. In the context of the sufficienc y of panel requests under Articl e 6.2 of the DSU, the Appellate 
Body has found that a panel request:   
... must plainly connect the challenged measure(s) with the 
provision(s) of the covered agreements claimed to have been infringed, so that the respondent party is aware of the basis for the alleged nullification or impairme nt of the complaining party's 
benefits.
153 
Given that such a requirement applies to panel reque sts at the outset of a panel proceeding, we are of 
the view that a  prima facie   case—made in the course of submissions to the panel—demands no less 
of the complaining party.  The evidence and arguments underlying a  prima facie   case, therefore, 
must be sufficient to identify the challenged meas ure and its basic import, identify the relevant WTO 
provision and obligation contained therein, and expl ain the basis for the claimed inconsistency of the 
measure with that provision. 
142. Antigua's case focused on Article XVI:2 of the GATS and, in particular, its sub-paragraphs 
(a) and (c).  The relevant provisions provide: 
2. In sectors where market-ac cess commitments are undertaken, 
the measures which a Member shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire 
territory, unless otherwise specified in its Schedule, are defined as: 
(a) limitations on the number of service suppliers 
whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test; 
... 
(c) limitations on the total number of service operations 
or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test .... (footnotes omitted) 
                                                     
 
152In Canada – Wheat Exports and Grain Imports , para. 191, the Appellate Body made a similar 
observation in the context of an appeal under Article 11 of the DSU:   
… it is incumbent upon a party to identify in its submissions the relevance 
of the provisions of legislation—the evidence—on which it relies to support 
its arguments.  It is not sufficient mere ly to file an entire piece of legislation 
and expect a panel to discover, on its own, what relevance the various provisions may or may not have for a party's legal position.   
153Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 162.  WT/DS285/AB/R 
 Page 45 
 
 
143. This text suggests that Antigua was required to make its  prima facie   case by first alleging 
that the United States had undertaken a market  access commitment in its GATS Schedule;  and, 
secondly, by identifying, with supporting evidence, how the challenged laws constitute impermissible 
"limitations" falling within Article XVI:2(a) or XVI:2(c).   
144. In the present case, the Panel determined that An tigua could not pursue its claim on the basis 
of the "total prohibition" as the measure at issue.154  In our view, the Panel was correct in so 
concluding.155  In order for the Panel properly to continue with its analysis, then, Antigua was 
required to make its  prima facie   case with respect to  specific   federal and state laws identified in its 
panel request.   
145. In its written submissions to the Panel, Anti gua asserted that the United States had "made a 
full commitment [in its GATS Schedule] to th e cross-border supply of gambling and betting 
services"156 along with references to the relevant sector of that Schedule.157  This assertion, in our 
view, satisfies the first requirement of Antigua's  prima facie   case under Article XVI:2.158 
146. As to the second requirement of the  prima facie   case, Antigua's claims under sub-paragraphs 
(a) and (c) of Article XVI:2, as regards individual laws  rather than the "total prohibition", are set out 
in the following paragraph from its second written submission to the Panel: 
The individual legislative and regulatory provisions, applications 
thereof and related practices that make up the United States' total 
prohibition are also caught by both Article XVI:2(a) and XVI:2(c) as 
separate "measures" .... 
• Federal laws specifically pr ohibiting "cross-border" supply 
function like an establishment requirement and are therefore the equivalent of a zero quota for cross-border supply 
• State laws that prohibit all gambling, in combination with 
other state laws that exempt specifically authorised gambling 
without providing a possibility for Antiguan operators to 
obtain an authorisation to supply gambling services on a cross-border basis, are the equivalent of a zero quota for cross-border supply 
• Several state laws or regulati ons explicitly establish numerical 
quotas 
                                                     
 
154Panel Report, para. 6.171. 
155Supra , paras. 120-126.   
156Antigua's first written submission to the Panel, para. 181. 
157Ibid., paras. 160-163. 
158Supra , para. 143. WT/DS285/AB/R 
Page 46  
 
• Several laws or regulations expressly grant exclusive or 
special rights to operators of domestic origin 
• Several state laws require the physical presence of the 
operator within the territory of the state and, in doing so, constitute a zero quota for cross-border supply.
159  (footnotes 
omitted) 
147. We begin our examination of the challenged me asures with the three federal laws, namely, 
the Wire Act, the Travel Act, and the IGBA.  We  observe that Antigua submitted the texts of these 
statutes and explained its understanding of them.160  In support of its argument that the three federal 
statutes prohibited certain kinds of cross-border s upply of gambling services, Antigua submitted to the 
Panel a report by the United States General Accounting Office161on internet gambling, and a letter 
from a Deputy Assistant Attorney General of th e Department of Justice informing an industry 
association of broadcasters that internet gambling violates the three federal statutes.162   
148. In addition, as we noted above163, Antigua, in its second written submission, alleged the 
"[f]ederal laws" prohibiting cross-border supply to be inconsistent with Article XVI.  The United 
States argues that Antigua never "specifically allege d" the inconsistency of the three specific federal 
statutes with Article XVI.164  Although, Antigua did not expressly mention these statutes by name 
when alleging inconsistency with Article XVI, we are of the view that, in the context of Antigua's  
                                                      
159Antigua's second written submission to the Panel, para. 37.  The footnotes omitted from this excerpt 
contain no reference to specific laws of the United States. 
160Antigua's statement at the first substantive panel meeting, para. 21, 10 December 2003;  Antigua's 
written submission in response to the United States' requ est for preliminary rulings, footnote 18 to para. 18, 22 
October 2003.  See also Antigua's response to Question 12 posed by the Panel, Panel Report, p. C-36 
(discussing prosecutions under the Wire Act and the Tr avel Act);  and Exhibit AB-82 submitted by Antigua to 
the Panel (containing texts of the Wire Act, the Travel Ac t, and the IGBA). 
161United States General Accounting Office, Internet Gambling: An Overview of the Issues , p. 11 
(December 2002), Exhibit AB-1 7 submitted by Antigua to the Panel (descr ibing the Wire Act, the Travel Act, 
and the IGBA). 
162Letter from John G. Malcolm to National Association of Broadcasters, 11 June 2003, Exhibit AB-73 
submitted by Antigua to the Panel.   
163Supra , para. 146. 
164United States' appellant's submission, para. 9.  WT/DS285/AB/R 
 Page 47 
 
 
previous statement clearly id entifying these three statutes165 and the Panel's subsequent questioning on 
these particular measures166, the reference to "[f]ederal laws" clear ly covered the Wire Act, the Travel 
Act, and the IGBA.  As a result, in our view, An tigua's arguments and evidence were sufficient to 
identify the Wire Act, the Travel Act, and the IGBA, and to make a  prima facie   case of their 
inconsistency with s ub-paragraphs (a) and (c) of Article XVI:2. 
149. As to the eight state laws reviewed by the Panel, we note that Antigua made no mention of 
them in the course of its argument that the United States acts inconsistently with Article XVI of the 
GATS.  In none of Antigua's submissions to th e Panel was the way in which these measures operate 
explained in a manner that would have made it appare nt to the Panel and to the United States that an 
inconsistency with Article XVI wa s being alleged with respect to these measures.  Thus, we see no 
basis on which we can conclude that Antigua su fficiently connected the eight state laws with 
Article XVI and thereby established a  prima facie   case of inconsistency with that provision. 
150. In Antigua's first written submission to the Pane l and in its opening statement at the first 
substantive panel meeting, none of the eight stat e laws was named in the context of Antigua's 
substantive claims.167  In its second written submission, Anti gua alleged merely that "state laws"—
                                                      
165Antigua's statement at the first substantive pane l meeting, para. 21, 10 December 2003.  In its 
opening statement at the first substantive panel meeting, Antigua discussed "three federal statutes", which it identified as follows: 
• The 'Wire Act' (18 U.S.C § 1084), which prohibits gambling 
businesses from knowing ly receiving or sendi ng certain types of 
bets or information that assist in placing bets over interstate and 
international wires; 
• The 'Travel Act' (18 U:S:C § 1952), which imposes criminal 
penalties for those who utilize interstate or foreign commerce with 
the intent to distribute the proceeds of any unlawful activity, including gambling considered unlawful in the United States; 
• The 'Illegal' Gambling Business Act' (18 U.S.C § 1955), which 
makes it a federal crime to operate a gambling business that violates the law of the state where the gambling takes place 
(provided that certain other criteria are fulfilled such as the 
involvement of at least five people and an operation during more than 30 days). 
Each of these three laws separately prohibits the cross-border supply of 
gambling and betting services from Antigua. 
166Question 32 posed by the Panel to Antigua, Panel Report, p. C-58, where the Panel noted: "In its first 
oral statement (para. 21), in arguing that a prohi bition on the cross-border supply of gambling and betting 
services exists, Antigua points to three federal laws, namely the Wire Act (18 USC § 1084), the Travel Act (18 
USC § 1952) and the Illegal Gambling Business Act (18 USC § 1955)."   
167Two of the state measures considered by the Panel—Section 9 of Article 1 of the New York 
Constitution and Section 18-10-103 of the Colorado Revised Statutes—are mentioned by Antigua in its first 
written submission. (Antigua's first written submission, pa ra. 149)  However, they are mentioned solely for the 
purpose of supporting Antigua's assertion that the reason  certain measures were identified in its panel request 
but not in its request for consultations was a typographical error.  No description is given of the laws or how 
they might be inconsistent with Article XVI. WT/DS285/AB/R 
Page 48  
 
without further specification—are inconsis tent with Article XVI:2(a) and/or (c).
168  Antigua did, 
however, make a cross-reference to a preceding sec tion in its submission detailing the operation of 
various state laws.169  Y e t ,   none   of the state laws considered by  the Panel is mentioned in that 
section.  Rather, the discussion relates primarily to other states' laws170, addresses laws that are not in 
Antigua's panel request171, or speaks only in general terms.172   
151. In our view, certain general statements ma de by Antigua in its second written submission 
were insufficient to permit the Panel to proceed  on the basis that Antigua had established a  prima 
facie   case regarding the eight state laws identified by the Panel.  For example, Antigua's second 
written submission contains a general discussion of st ate gambling laws, with footnote citations to, 
 inter alia  , a report by the United States General Accounting Office and a law review article.173  The 
law review article contains a discussion of state re gulation of gambling, with reference, primarily in 
footnotes, to the laws of several states, including California, Hawaii, Illinois, Louisiana, and South 
Dakota.  As we understand it, the Panel followed this  trail of footnote references, and then compared 
the statutes cited in the footnotes of that law review  article with Antigua's pa nel request to determine 
whether Antigua had identified provisions of those statutes and, thereby, to ascertain which state law 
Antigua intended to includ e as part of its claim.174  This led the Panel to conclude that certain laws of 
Louisiana and South Dakota were ch allenged by Antigua under Article XVI. 
152. The Panel engaged in a similar multi-step an alysis in seeking to discern some connection 
between the laws of Massachusetts, New Jersey, Ne w York, and Utah, and Antigua's references in its 
written submissions and various exhibits.175  Yet we are unable to detect  any  connection, however 
tenuous, between the relevant laws of Colorado and Minnesota, on the one hand, and the allegation of 
inconsistency with Article XVI:2, on the other hand.  Although Antigua did submit these laws in its 
                                                      
168Supra , para. 146. 
169Antigua's second written submission to the Panel, para. 37 and footnotes 46-47 and 49 thereto (citing 
paras. 22-24 and 28-29 of the same submission). 
170See, for example, ibid., paras. 27-29 (discussing laws of, inter alia , Illinois, Iowa, and Nevada). 
171See, for example, ibid., para. 27. 
172See, for example, ibid., paras. 22 ("All states have adopted the same basic legal approach ….") 
and 24 ("under the laws or th e practice of every state"). 
173Ibid., footnotes 22 and 23 to para. 22 (citing United States General Accounting Office, Internet 
Gambling:  An Overview of the Issues  (December 2002), Exhibit AB-17 submitted by Antigua to the Panel;  and 
Antonia Z. Cowan, "The Global Gaming Village:  Interstate and Transnational Gambling", Gambling Law 
Review , Vol. 7, pp. 255-257, Exhibit AB-119 submitted by Antigua to the Panel). 
174Panel Report, paras. 6.228 and 6.244. 
175Antigua's second written submission to the Panel, footnotes 46, 47, and 49 to para. 37 (citing 
Antigua's second written submission, paras. 22-24 an d 27-29);  and Antigua's second written submission, 
footnotes 22 and 23 to para. 22 (citing, inter alia , Enclosure 1 to the Interim Report of the United States General 
Accounting Office on Internet Gambling, entitled "Gambling Law in Five States and Their Effect on Internet 
Gambling" (23 September 2002), Exhibit AB -84 submitted by Antigua to the Panel).  WT/DS285/AB/R 
 Page 49 
 
 
exhibits, we see no arguments in any submissions that  would have clearly informed the Panel and the 
United States how those two laws would form pa rt of Antigua's claims under Article XVI:2(a) 
and XVI:2(c).  It follows that, without providing a stronger link between the particular state law being 
challenged and the obligation a lleged to have been infringed, Antigua failed to make a  prima facie   
case with respect to any of these eight state laws.    
153. In our view, therefore, Antigua established its  prima facie   case of inconsistency with 
Article XVI, only as to the Wire Act, the Travel Act,  and the IGBA.  In contrast, with respect to the 
state laws—that is, certain laws of Colorado, Louisiana, Massachusetts, Minnesota, New Jersey, New York, South Dakota, and Utah—we are of the view that Antigua failed to identify how these laws 
operated  and  how they were relevant to its clai m of inconsistency with Article XVI:2. 
154. Accordingly, we find that the Panel did not err  in examining whether three federal laws—the 
Wire Act, the Travel Act, and the IGBA—are c onsistent with the United States' obligations under 
Article XVI of the GATS.  We also  find  that the Panel erred  in examining whether the following 
eight state laws are consistent with the United St ates' obligations under Article XVI of the GATS: 
• Colorado
:  Section 18-10-103 of the Colorado Revised Statutes; 
• Louisiana :  Section 14:90.3 of the Louisiana Revised Statutes (Annotated);   
• Massachusetts :  Section 17A of chapter 271 of the Annotated Laws of Massachusetts; 
• Minnesota :  Section 609.755(1) and Subdivisions 2-3 of Section 609.75 of the Minnesota 
Statutes (Annotated); 
• New Jersey :  Paragraph 2 of Section VII of Article 4 of the New Jersey Constitution, and 
Section 2A:40-1 of the New Jersey Code; 
• New York :  Section 9 of Article I of the New York Constitution and Section 5-401 of the 
New York General Obligations Law;  
• South Dakota :  Sections 22-25A-1 through 22-25A-15 of the South Dakota Codified 
Laws;  and 
• Utah :  Section 76-10-1102 of the Utah Code (Annotated). WT/DS285/AB/R 
Page 50  
 
155. Furthermore, because the Panel erred in ruling on claims relating to these state laws, where no 
prima facie  case of inconsistency had been  made out by Antigua, we  reverse  the Panel's finding, in 
paragraphs 6.421(b) and 7.2(b)(ii) of the Panel Report, that the following state laws are inconsistent 
with Article XVI:1 and with sub-para graphs (a) and (c) of Article XVI:2: 
• Louisiana
:  Section 14:90.3 of the Louisiana Revised Statutes (Annotated);  
• Massachusetts :  Section 17A of chapter 271 of the Annotated Laws of Massachusetts; 
• South Dakota :  Section 22-25A-8 of the South Dakota Codified Laws;  and 
• Utah :  Section 76-10-1102(b) of the Utah Code (Annotated). 
156. We note that the United States also advances an appeal under Article 11 of the DSU in 
relation to the Panel's assessment of Antigua's  prima facie   case.  The United States argues that the 
Panel failed to comply with its obligations under Article 11 of the DSU, not merely because it made 
an error in finding a  prima facie   case, but because of "the egregious nature of the departure by this 
Panel from its assigned role of objective arbitrator."176  We have already found error in the Panel's 
examination of the aforementioned state laws177 on the basis that Antigua had not made a  prima facie   
case of inconsistency with Article XVI:2.  Theref ore, in order to resolve this dispute, we  need not 
determine   whether, in assessing Antigua's  prima facie   case, the Panel also failed to satisfy its 
obligations under Artic le 11 of the DSU. 
157. Finally, we note that, when making findings as to the Travel Act and the IGBA, the Panel 
referred to "the Travel Act (when read together with the relevant state laws)" and "the Illegal 
Gambling Business Act (when read together with the relevant state laws)".178  The Panel's reference to 
"the relevant state laws" in its findings on two  federal   laws simply reflects the fact that these two 
federal statutes explicitly incorporate certain crim inal behaviour, defined under state law, as an 
element of the crimes under those federal statutes.179  Thus, the Panel's findings as to the Travel Act 
and the IGBA are not affected by our finding that  the Panel should not have examined the GATS-
consistency of these eight state laws.   
                                                      
176United States appellant's submission, para. 39. 
177Supra , para. 154. 
178Panel Report, paras. 6.421, 6.535, 6.565, 7.2(b)(i), and 7.2(d). 
179Ibid., paras. 6.367 and 6.375.  WT/DS285/AB/R 
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V. Interpretation of the Specific Commitments Made by the United States in its GATS 
Schedule 
158. The Panel found, at paragraph 7.2( a) of the Panel Report, that: 
... the United States' Schedule under the GATS includes specific 
commitments on gambling and betting services under subsector 10.D.
180  
The United States appeals this finding.  Accordin g to the United States, by excluding "sporting" 
services from the scope of subsector 10.D of its GATS Schedule, it excluded gambling and betting services from the scope of the specific commitments that it undertook therein.  The United States 
argues that the Panel misinterpreted the ordinary meaning of the text of subsector 10.D, "Other recreational services (except sporting)", and erro neously found that the ordinary meaning of 
"sporting" does not include gambling.  The United St ates also contends that the Panel erred in its 
identification and analysis of the context in which th e terms of subsector 10.D must be interpreted.  In 
particular, the Panel is alleged to have mistakenly elevated certain documents  used in the preparation 
of GATS Schedules (W/120 and the 1993 Scheduling Gu idelines) to the status of "context", when 
they are in fact "mer e 'preparatory work'"
181, and, as such, cannot be relied upon when they suggest a 
meaning at odds with the unambiguous ordinary meani ng of the text.  According to the United States, 
the Panel relied on an "erroneous presumption" th at, unless the United States "'expressly'" departed 
from W/120, the United States could be "'assumed to have relied on W/120 and the corresponding 
CPC references'".182  Finally, the United States argues, in the alternative, that the Panel should have 
found that gambling falls under subsector 10.E, "Other", where the United States made no 
commitment. 
159. In the context of the GATT 1994, the Appella te Body has observed that, although each 
Member's Schedule represents the tariff commitments that bind  one  Member, Schedules also 
represent a common agreement among  all  Members.183  Accordingly, the task of ascertaining the 
meaning of a concession in a Schedule, like the task  of interpreting any other treaty text, involves 
identifying the  common intention  of Members, and is to be achieved by following the customary 
rules of interpretation of public  international law, codified in Articles 31 and 32 of the  Vienna 
Convention.184   
                                                      
180See also Panel Report, para. 6.134. 
181United States' appellant's submission, para. 65. 
182Ibid., para. 75 (quoting Panel Report, paras. 6.104 and 6.106). 
183Appellate Body Report, EC – Computer Equipment , para. 109. 
184Ibid., para. 84. WT/DS285/AB/R 
Page 52  
 
160. In the context of the GATS, Article XX:3 exp licitly provides that Members' Schedules are an 
"integral part" of that agreement.  Here, too, the task of identifying the meaning of a concession in a 
GATS Schedule, like the task of interpreting any other treaty text, involves identifying the  common 
intention  of Members.  Like the Panel
185—and, indeed, both the participants186—we consider that the 
meaning of the United States' GATS Schedule must be  determined according to the rules codified in 
Article 31 and, to the extent appropriate, Article 32 of the  Vienna Convention.    
161. The contentious issues in this appeal concer n whether the Panel erred in the way that it used 
the  Vienna Convention  principles of interpretation in dete rmining the scope of the specific 
commitments made by the United States in subsect or 10.D of its GATS Schedule, and whether the 
Panel erred in the conclusions it drew on the basis of its approach.   
A. Interpretation of Subsector 10.D According to  the General Rule of  Interpretation:  
Article 31 of the Vienna Convention 
162. The United States' appeal focuses on the Panel' s interpretation of the word "sporting" in 
subsector 10.D of the United States' GATS Schedule.  According to the United  States, the ordinary 
meaning of "sporting" includes gambling and betting and the Panel erred in finding otherwise.  We 
observe first that the interpretative question a ddressed by the Panel was a broader one, namely 
"whether the US Schedule includes specific commitments on gambling and betting services notwithstanding the fact that the words 'gambli ng and betting services' do not appear in the US 
Schedule."
187  In tackling this question, the Panel turned to Sector 10 of the United States' Schedule to 
the GATS, which Antigua claimed included a sp ecific commitment on gambling and betting services, 
and the United States claimed did not.  The releva nt part of the United States' Schedule provides:188 
                                                      
185Panel Report, para. 6.45. 
186Antigua's and the United States' responses to questioning at the oral hearing. 
187Panel Report, para. 6.41. 
188The United States of America – Schedule of Sp ecific Commitments, GATS/SC/90, 15 April 1994 
(the "United States' Schedule").  The "National Tr eatment" and "Additional Commitments" columns of the 
United States' Schedule are omitted from this excerpt.  The relevant part of the United States' GATS Schedule is 
attached, in its entirety, as Annex III to this Report.  WT/DS285/AB/R 
 Page 53 
 
 
Sector or subsector Limitations on market access 
10. RECREATIONAL, CULTURAL, & 
SPORTING SERVICES 
  
A. ENTERTAINMENT SERVICES 
(INCLUDING THEATRE, LIVE BANDS 
AND CIRCUS SERVICES)   1) None 
  2) None 
  3) None   4) Unbound, except as indicated  in the 
horizontal section 
 
B. NEWS AGENCY SERVICES    1) None 
  2) None   3) None   4) Unbound, except as indicated  in the 
horizontal section 
 
C LIBRARIES, ARCHIVES, MUSEUMS 
AND OTHER CULTURAL SERVICES 
   1) None 
  2) None   3) None   4) Unbound, except as indicated  in the 
horizontal section 
 
D. OTHER RECREATIONAL SERVICES 
(except sporting)   1) None 
  2) None   3) The number of concessions available for 
commercial operations in federal, state and 
local facilities is limited 
  4) Unbound, except as indicated in the horizontal 
section 
 
 
163. In considering this section of the United States' Schedule, the Panel stated that it would begin 
by "examining the ordinary meaning of vari ous key terms used in the US Schedule."189  The Panel 
examined the term "Other recreational services (e xcept sporting)" in subsector 10.D, as well as the 
term "Entertainment services" in subsector 10.A.  Having consulted the dic tionary definitions of 
various words, the Panel found that "the  ordinary  meaning of 'sporting' does not include 
gambling".190  The United States submits that the Panel could not have made this finding had it 
properly followed Article 31(1) of the  Vienna Convention.   
164. Article 31(1) of the  Vienna Convention  requires a treaty to be interpreted "in good faith in 
accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the 
light of its object and purpose."  In order to identif y the ordinary meaning, a Panel may start with the 
                                                      
189Panel Report, para. 6.47. 
190Ibid., para. 6.61. (original emphasis) WT/DS285/AB/R 
Page 54  
 
dictionary definitions of th e terms to be interpreted.
191  But dictionaries, alone, are not necessarily 
capable of resolving complex questions of interpretation192, as they typically aim to catalogue  all  
meanings of words—be those meanings common or rare, universal or specialized.     
165. In this case, in examining definitions of "sporting", the Panel surveyed a variety of 
dictionaries and found a variety of definitions of the word.193  All of the dictionary definitions cited by 
the Panel define "sporting" as being connected to —in the sense of "related to", "suitable for", 
"engaged in" or "disposed to"—sports activities.  Some dictionaries also define "sporting" as being 
connected to gambling or betting, but others do not.  Of those that do, several note that the word is 
mainly used in this sense in the phrase "a sporting man", or in a pe jorative sense, and some note that 
the word is used in this sense onl y when the gambling or betting activities pertain to sports.  Based on 
this survey of dictionary definitions, as well as the fact that "gambling" does not fall within the 
meaning of the Spanish and French words that correspond to "sporting", namely "déportivos" and 
"sportifs"194, the Panel made its finding that "the  ordinary  meaning of 'sporting' does not include 
gambling".195   
166. We have three reservations about the way in  which the Panel determined the ordinary 
meaning of the word "sporting" in the United States' Schedule.  First, to the extent that the Panel's 
reasoning simply equates the "ordinary meaning"  with the meaning of words as defined in 
dictionaries, this is, in our view, too mechanical an  approach.  Secondly, the Panel failed to have due 
regard to the fact that its recourse to dictionari es revealed that gambling and betting can, at least in 
some contexts, be one of the meanings of the word "sporting".  Thirdly, the Panel failed to explain the 
basis for its recourse to the meanings of the Fren ch and Spanish words "déportivos" and "sportifs" in 
                                                      
191We note, in this regard, the words of the panel in US – Section 301 Trade Act :   
For pragmatic reasons the normal usage ... is to start the interpretation from 
the ordinary meaning of the "raw" text of the relevant treaty provisions and 
then seek to construe it in its context and in the light of the treaty's object 
and purpose.   
(Panel Report, US – Section 301 Trade Act , para. 7.22) 
192Appellate Body Report, US – Softwood Lumber IV , para. 59;  Appellate Body Report, Canada – 
Aircraft , para. 153;  and Appellate Body Report, EC – Asbestos , para. 92. 
193The 13 different dictionary definitions consulted by the Panel are set out in paragraphs. 6.55-6.59 of 
the Panel Report.  Some of the definitions appear to contradict one another.  For instance, the Shorter Oxford 
English Dictionary  definition quoted by the Panel  defines "sporting" as both "characterized by sportsmanlike 
conduct";  and "[d]esignating an inferior sportsman or a person interested in sport from purely mercenary 
motives".  (Panel Report, para. 6.55) 
194Panel Report, paras. 6.59-6.60. 
195Ibid., para. 6.61. (original emphasis)  WT/DS285/AB/R 
 Page 55 
 
 
the light of the fact that the United States' Sche dule explicitly states, in a cover note, that it "is 
authentic in English only."196   
167. Overall, the Panel's finding concerning the word "sporting" was premature.  In our view, the 
Panel should have taken note that, in the abstract , the range of possible meanings of the word 
"sporting" includes  both  the meaning claimed by Antigua and the meaning claimed by the United 
States, and then continued its inquiry into  which  of those meanings was to be attributed to the word 
as used in the United States' GATS Schedule.   
168. Nevertheless, even accepting that the Panel erred in reaching a conclusion regarding the 
meaning of "sporting" at such an early stage of its analysis, this alone is not decisive of the United 
States' appeal.  This is because the Panel did not en d its analysis once it had considered the dictionary 
definitions of "sporting".  Rather, having found that the word "sporting" did  not  include gambling 
and betting services, it examined whether other words in Sector 10 of the United States' Schedule  did  
serve to make a specific commitment on gambling and betting services.  To do so, the Panel turned to 
the terms "recreational services" and "entertainment  services".  Beginning again with dictionary 
definitions, the Panel observed that "words such as 'recreational' and 'entertainment' could cover 
virtually the same types of services activities".197  The Panel expressed its view that "gambling and 
betting have,  a priori ,  the characteristics of being entertaining or  amusing, or of being used as a form 
of recreation."198  Having thus consulted dictionaries for "the words 'Other recreational services 
(except sporting)' and 'entertainment services'", th e Panel observed that these left "a number of 
questions open" and did not "allow it to reach a definitive conclusion on whether or not the US 
Schedule includes specific commitments on 'gambling and betting services' in sector 10".199  T h e  
Panel then turned to consider the context in wh ich the relevant terms from sector 10 of the United 
States' Schedule are situated.   
169. The United States contests the Panel's identifi cation and use of relevant context for the 
interpretation of the commitment made by the United States in its Schedule.  In particular, the United 
States argues that the Panel erred in treating two documents from the Uruguay Round of trade 
negotiations, namely W/120 and the 1993 Scheduling Guidelines, as relevant context within the 
meaning of Article 31(2) of the  Vienna Convention .   
                                                      
196The cover note is included in the excerpt from th e United States' Schedule attached as Annex III to 
this Report. 
197Panel Report, para. 6.63. 
198Ibid., para. 6.66. 
199Ibid., para. 6.67. WT/DS285/AB/R 
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170. The Panel found that: 
... both W/120 and the 1993 Scheduli ng Guidelines were agreed upon 
by Members with a view to using such documents, not only in the negotiation of their specific commitments, but as interpretative tools in the interpretation and appli cation of Members' scheduled 
commitments.  As such, these documents comprise the "context" of GATS Schedules, within the meaning of Article 31 of the  Vienna 
Convention  and the Panel will use them for the purpose of 
interpreting the GATS, GATS schedules and thus the US 
Schedule.
200   
171. Before turning to the specifics of the United States' appeal, we observe that the second 
paragraph of Article 31 of the  Vienna Convention  defines "context" as follows:   
2. The context for the purpose of the interpretation of a treaty 
shall comprise, in addition to the text, including its preamble and annexes: 
(a) any agreement relating to the treaty which was made 
between all the parties in connexion with the conclusion of 
the treaty; 
(b) any instrument which was made by one or more parties in 
connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 
172. We also consider it useful to set out, briefly,  the nature of the two documents at issue.  
On 10 July 1991, the GATT Secretariat ci rculated document W/120, entitled "SERVICES 
SECTORAL CLASSIFICATION LIST".  This follo wed the circulation of an informal note 
containing a draft services sectoral classification list in May 1991, as well as the circulation of an 
initial reference list of sectors (the "W/50") in April 1989.
201  A short cover note to W/120 explains 
that the document reflects, to the extent possibl e, comments made by negotiating parties on the May 
draft, and that W/120 itself might be subject to futu re modification.  Otherwise, the document consists 
of a table in two columns.  The left column is entitled "SECTORS AND SUBSECTORS" and consists 
of a list classifying services into 11 broad service sectors, each divided into several subsectors (more 
than 150 in total).  The right column is entitled "CORRESPONDING CPC" and sets out, for nearly 
every subsector listed in the left-hand column, a CP C number to which that subsector corresponds.  It 
is not disputed that the reference in W/120 to "C PC" is a reference to the United Nations' Provisional 
                                                      
200Panel Report, para. 6.82. 
201MTN.GNS/W/50, 13 April 1989.  WT/DS285/AB/R 
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Central Product Classification.202  The CPC is a detailed, multi-level classification of goods and 
services.203  The CPC is  exhaustive  (all goods and services are covered) and its categories are 
 mutually exclusive  (a given good or service may only be classified in  one  CPC category).204  The 
CPC consists of "Sections" (10), "Divisions" (69), "Groups" (295), "Classes" (1,050) and 
"Subclasses" (1,811).  Of the 10 "Sections" of the CPC, the first five primarily classify  products .  
They are based on the Harmonised Commodity Desc ription and Coding System, and are not referred 
to in W/120.  The second five Sec tions of the CPC primarily classify  services,  and all of the 
references in W/120 are to sub-categories of these five Sections.   
173. On 3 September 1993, the GATT Secretariat, in response to requests by the negotiating 
parties, circulated an "Explanatory Note" designed to "assist in the preparation of offers, requests, and 
national Schedules of commitments" and to ensure  "comparable and unambi guous commitments" and 
achieve "precision and clarity".205  This document, known as the "1993 Scheduling Guidelines", 
addresses two main questions:  (i)  what  items should be put in a Schedule;  and (ii)  how  they should 
be entered.  In addressing these questions, the Gu idelines provide examples as to the types of 
measures that should be scheduled or need not be scheduled, and cover a variety of issues, including 
the scope of coverage under each mode of supply, and the relationship between different modes when 
making commitments on market access.  The documen t also instructs Members as to the language to 
use when making a specific commitment,206 and includes a template indicating the overall structure, 
and columns and rows that should constitute a Member's Schedule.   
174. Bearing the above in mind, we see two main di fficulties with the Panel's characterization of 
these documents as context .  First, we see no basis for the Panel's finding that they "constitute an 
agreement made between all the parties or an in strument[] made between some parties and accepted 
                                                      
202Provisional Central Product Classification, Statistical Papers, Series M No. 77, United 
Nations (1991).  The United Nations Central Product Clas sification has been revised on several occasions.  The 
latest version is the Central Product Classification, Ve rsion 1.1, Statistical Papers, Series M No. 77, United 
Nations (2004). 
203The main purposes of the CPC are to provide a framework for international comparison of statistics 
dealing with goods, services, and assets and to se rve as a guide for developing and revising existing 
classification schemes of products. (Preface to the CPC, p. V) 
204See infra , paras. 200 and 201 for further details on the CPC, and for the way in which the CPC 
classifies the services at  issue in this dispute. 
205Scheduling of Initial Commitments in Trade in Services:  Explanatory Note, MTN.GNS/W/164, 3 
September 1993, at p. 1.   
206For example, paragraphs 24 to 27 explain that:  to indicate a full commitm ent, a Member should 
enter "NONE";  to make no commitment, it should enter "UNBOUND";  and to make a commitment with limitations, the Member should enter a concise descri ption of each measure, "indicating the elements which 
make it inconsistent with  Articles XVI or XVII". WT/DS285/AB/R 
Page 58  
 
by the others as such".
207  To reach this finding, the Panel reasoned that, although the documents were 
"technically" drafted by the GATT Secretariat: 
... they can be considered "agreement[s] ... made between all 
[Members]" or ... "instrument[s] ... made by one or more [Members]" 
but accepted by all of them as such within the meaning of Article 
31:2(a) and (b) of the Vienna Convent ion.  In this regard, it may be 
recalled that the two documents were prepared by the – then – GATT Secretariat, at the behest of the Uruguay Round participants.  The participants  can thus be considered to be the "intellectual" authors of 
the documents.  Besides, both documents were the object of a series 
of formal and informal consultations during which Members had the opportunity to amend them and to include changes.  Both were circulated as formal "green band" documents with the agreement of the participants.
208  (footnotes omitted) 
175. We note that Article 31(2) refers to the  agreement  or  acceptance  of the parties.  In this 
case, both W/120 and the 1993 Scheduling Guidelines were drafted by the GATT Secretariat rather 
than the parties to the negotiations.  It may be true  that, on its own, authorship by a delegated body 
would not preclude specific documents209 from falling within the scope of Article 31(2).  However, 
we are not persuaded that in this case the Panel could find W/120 and the 199 3 Scheduling Guidelines 
to be context.  Such documents can be characteriz ed as context only where th ere is sufficient evidence 
of their constituting an "agreement relating to the treaty" between the parties or of their "accept[ance 
by the parties] as an instrument related to the treaty".   
176. We do not accept, as the Panel appears to have done, that, simply by requesting the 
preparation and circulation of these documents and usi ng them in preparing their offers, the parties in 
the negotiations have accepted them as agreements or  instruments related to the treaty.  Indeed, there 
are indications to the contrary.  As the United Stat es pointed out before the Panel, the United States 
and several other parties to the negotiations clear ly stated, at the time W/120 was proposed, that, 
although Members were encouraged to follow the br oad structure of W/120, it was never meant to 
bind Members to the CPC definitions, nor to any other "specific nomenclature", and that "the 
                                                      
207Panel Report, para. 6.77. 
208Ibid., para. 6.80.  
209The Panel reasoned that assigning th e task of drafting these documents  to the Secretariat was simply 
"the most practical and efficient way to work on such a matter" and that such delegation did not deprive the 
parties to the negotiations of  auth orship. (Panel Report, para. 6.80)  WT/DS285/AB/R 
 Page 59 
 
 
composition of the list was not a matter for negotiations".210  Similarly, the Explanatory Note that 
prefaces the Scheduling Guidelines itself appears to c ontradict the Panel in this regard, as it expressly 
provides that, although it is intended to assist "pers ons responsible for schedu ling commitments", that 
assistance "should not be considered as an aut horitative legal interpretation of the GATS."211 
177. The Panel also reasoned that: 
.... both W/120 and the 1993 Schedu ling Guidelines were agreed 
upon by Members with a view to using such documents,  not only  in 
the negotiation  of their specific commitments, but  as interpretative 
tools  in the interpretation and application of Members' scheduled 
commitments.212  (emphasis added) 
In our opinion, the Panel's description of how th ese documents were created and used may suggest 
that the parties agreed to use su ch documents in the negotiations of their specific commitments.  The 
Panel cited no evidence, however, directly supporting its further conclusion, in the quotation above,  
                                                      
210Note on the Meeting of 27 May to 6 June 1991 , MTN.GNS/42, para. 19 (24 June 1991) (quoted in 
Panel Report, para. 3.41 and footnote 117 thereto).  The paragraphs of this Note cited by the United States are 
taken from the minutes from a meeting that was held after  the Secretariat had circulated its first draft 
classification list, but before  the final version of W/120 had been circulated.  The content of those paragraphs is 
as follows:   
18. The representatives of the European Communities , Canada , Chile , 
the United States , Japan , Poland , Sweden on behalf of the Nordic countries  
and Mexico  found that the proposed classification contained in the informal 
note by the secretariat constituted an improvement over the list contained in 
MTN.GNS/W/50.  There was confirmati on of the agreement to base the 
classification of services sectors and subsectors as much as possible on the 
Central Product Classification (CPC) lis t.  There was some agreement that 
putting together a classification list of services was an on-going work which 
required coordination with efforts undertaken in other fora.  The representative of Austria
 stressed the need to involve statistical experts in 
the work since the classification list resulting from the GNS would in the 
future serve as the basis for the compilation of statistics on services.  The representative of Japan
 said not only statistical but also sectoral experts 
should take part in drawing up the list.  
19. The representative of the United States  did not wish to have 
extensive discussions on the matter and stressed that the composition of the 
list was not a matter for negotiations.  This view was shared by the representative of the European Communities
.  The representatives of the 
United States , Poland , Malaysia  and Austria  said that the list should be illus-
trative or indicative and not bind partie s to any specific nomenclature.  The 
representative of Malaysia  suggested that it would be important to have the 
definitions behind individual items in the list, especially where there was a 
high degree of aggregation. 
2111993 Scheduling Guidelines, p. 1.   
212Panel Report, para. 6.82.  WT/DS285/AB/R 
Page 60  
 
that the agreement of the parti es encompassed an agreem ent to use the documents "as interpretative 
tools in the interpretation and application of Members' scheduled commitments."   
178. In our opinion, therefore, the Panel erre d in categorizing W/120 and the 1993 Scheduling 
Guidelines as "context" for the interpretation of th e United States' GATS Schedule.  Accordingly, we 
set aside this part of the Panel's examination of  "context".  There is, however, additional context 
referred to by the Panel and the participants that we  must consider, namely:  (i) the remainder of the 
United States' Schedule of specific commitments;  (ii)  the substantive provisions of the GATS;  (iii) 
the provisions of covered agreements other than  the GATS;  and (iv) the GATS Schedules of  other   
Members. 
179. We begin by examining the immediate context in  which the relevant entry is found, that is, 
the United States' Schedule as a whole.  The Unit ed States admits that it "generally followed 
the W/120  structure  in its Schedule of specific commitments."
213  The Schedule makes no reference 
to CPC codes.  The Schedule does, however, refer to W/120 in two instances214, apparently in order to 
make clear that the United States ' commitment corresponds to only  part  of a subsector listed in W/120.  
This suggests that, at least for some  of its entries, the Un ited States also  expressly referred to W/120 in 
order to define the  content  of a Schedule entry and, thereby, limit the  scope  of its specific 
commitment.215  At the same time, the context provided by the United States' Schedule as a whole does 
not indicate clearly the scope of the commitment in subsector 10.D. 
180. We move, therefore, to examine the context pr ovided by the structure of the GATS itself.  
The agreement defines "services" very broadly, as including " any service in  any  sector except 
services supplied in the exercise of governmental authority".216  In addition, the GATS definition of 
"sector" provides that any reference to a "sector"  means—unless otherwise specified in a Member's 
Schedule—a reference to  all  of the subsectors contained within that sector.217  Many of the 
obligations in the GATS apply only in sectors in which a Member has undertaken specific 
                                                      
213United States' response to Question 5 posed by the Panel, Panel Report, p. C-26. (original emphasis) 
214Sector B of the Schedule is as follows "COMPUTER AND RELATED SERVICES 
(MTN.GNS/W/120 a) - e), except airline computer reservation systems)";  and the entry in subsector F.r reads 
"Publishing (Only part of MTN.GNS/W/120 category:  'r) Printing, Publishing')".   
215The Panel made a similar point in paragraph 6.104 of the Panel Report and footnote 665 thereto. 
216GATS Article I:3(b). (emphasis added) 
217Article XXVIII provides that: 
(e) "sector" of a service means, 
(i) with reference to a specifi c commitment, one or more, or 
all, subsectors of that service, as specified in a Member's 
Schedule,  
(ii) otherwise, the whole of that  service sector, including all of 
its subsectors;  WT/DS285/AB/R 
 Page 61 
 
 
commitments.218  To us, the structure of the GATS necessar ily implies two things.  First, because the 
GATS covers  all  services except those supplied in the exerci se of governmental authority, it follows 
that a Member may schedule a specific commitment in respect of any service.  Secondly, because a 
Member's obligations regarding a particular servi ce depend on the specific commitments that it has 
made with respect to the sector or subsector with in which that service falls, a specific service cannot 
fall within two different sectors or subsectors.  In other words, the sectors and subsectors in a 
Member's Schedule must be mutually exclusive.219  In the context of the United States' Schedule, this 
means that, notwithstanding the broad language u sed in sector 10—for example, "recreational 
services", "sporting", and "entertainment services"—, gambling and betting services can  only  fall—if 
at all—within  one  of those service categories.  
181. Looking beyond the GATS to other covered agreem ents, we observe that Article 22.3(f) of 
the DSU provides that, for purposes of suspending c oncessions, "'sector' means ....(ii)  with respect to 
services, a principal sector as identified in the curre nt 'Services Sectoral Classification List' which 
identifies such sectors".  A footnote adds that "[t]he list in document MTN.GNS/W/120 identifies 
eleven sectors."  This reference confirms the rele vance of W/120 to the task of identifying service 
sectors in GATS Schedules, but does not appear to assist in the task of ascertaining within which 
subsector of a Member's Schedule a specific service falls. 
182. Both participants220, as well as the Panel, accepted that other Members' Schedules constitute 
relevant context for the interpretation of subsector 10.D of the United States' Schedule.221  A s  t h e  
Panel pointed out, this is the logical consequence of Article XX:3 of the GATS, which provides that 
Members' Schedules are "an integral part" of the GATS.  We agree.  At the same time, as the Panel rightly acknowledged, use of other Members' Schedules as context must be tempered by the 
recognition that "[e]ach Schedule has its own intrinsic logic, which is different from the US 
Schedule."
222   
183. The United States relies on the Schedules of other Members as context seeking to establish 
that:  (i) because many Members refer to CPC codes in their Schedules but the United States does not, 
                                                      
218See, for example, Articles VI:1, VIII: 1, XVI, and XVII of the GATS.   
219If this were not the case, and a Member scheduled th e same service in two different sectors, then the 
scope of the Member's commitment woul d not be clear where, for example, it made a full commitment in one of 
those sectors and a limited, or no, commitment, in the other.   At the oral hearing in this appeal, both the United 
States and Antigua agreed that the entries in a Member's  Schedule must be mutually exclusive.  See also Panel 
Report, paras. 6.63, 6.101, and 6.119. 
220Antigua's and United States' responses to questioning at the oral hearing.  
221In paragraph 6.97 of the Panel Report, the Panel st ated that it agreed "with  the United States that 
other Members' Schedules comprise the 'context' within the meaning of Article 31:2 of the Vienna Convention." 
222Panel Report, para. 6.98.  By referring to other Members' Schedules here, we are not interpreting 
such Schedules, but rather using them as "context" for the interpretation of the United States' Schedule.   WT/DS285/AB/R 
Page 62  
 
the United States' Schedule cannot be "presumed" to  follow the CPC;  and (ii) scheduling gambling 
and betting services in subsector 10.E (rather than 10. D) was one of several ac cepted approaches used 
by Members.
223  We are not persuaded that the conclusi ons the United States argues must be drawn 
from this context necessarily follow.  It is true th at a large majority of Members used CPC codes in 
their Schedules.  It is also true that the United States did not use them.224  However, the United States' 
Schedule, like the Schedules of nearly all Members,  generally follows the structure, and adopts the 
language, of W/120.225  These structural and linguistic similaritie s lead us to conclude, contrary to the 
United States submission, that the absence of refere nces to CPC codes does not mean that words used 
in the United States' Schedule  must   have a different meaning and sc ope than the same words used in 
the Schedules of other Members.   
184. We also note that, unlike the United States, several Members specifically used the words 
"gambling and betting services", or some approximation thereof, in their Schedules.226  The fact that 
the United States did not use any such specific la nguage tends, if anything, to undercut its assertion 
that it intended to single out su ch services for exclusion from the scope of its commitment.  Whether 
or not they used the term "gambling and betting services" in their Schedules, several Members also 
made clear, through reference to CPC codes, that  they were making a commitment in respect of 
"sporting services" and that the services falling w ithin the category "sporting services" did  not 
include gambling and betting services.227  Moreover, the United States did not point to any example in 
another Member's Schedule where the category of "sporting services" clearly  included   gambling and 
betting services.   
                                                      
223Before the Panel, the United States referred to the Schedules of Iceland and Senegal. (See 
footnote 106 to para. 74 of the United States' first written submission to the Panel)  
224The Panel observed, in an earlier discussion, that: 
... most Members chose to refer to CPC numbers to define the scope of their 
commitments:  (i) only 17 schedules adopted a non-CPC approach;  (ii) a 
few schedules have a "mixed" approach, i.e. they include CPC numbers for 
some sectors only.  
(Panel Report, footnote 651 to para. 6.81) 
225As we observed supra , para. 179, the United States admits that it generally followed the W/120 
structure, and its Schedule specifically  refers to W/120 in two instances. 
226In most instances, the words appear to be used to exclude these services from the scope of the 
commitment.  See the Schedules of Au stria (GATS/SC/7);  Bulg aria (GATS/SC/122);  Croatia (GATS/SC/130);  
the European Communities (GATS/SC/31);  Finland (GATS/SC/33);  Lithuania (GATS/SC/133);  Slovenia 
(GATS/SC/99);  and Sweden (GATS/SC/82).  In two cases, however, the words appear to be used to make a 
limited specific commitment.  See the Schedules of  Peru (GATS/SC/69) and Senegal (GATS/SC/75).  
227See the Schedules of Australia (GATS/SC/6);  Japan (GATS/SC/46);  Liechtenstein (GATS/SC/83-
A);  Switzerland (GATS/SC/83);  and Thailand (GATS/SC/85).    WT/DS285/AB/R 
 Page 63 
 
 
185. We also find unpersuasive the arguments of the United States with respect to subsector 10.E, 
"Other".228  Only one Member clearly scheduled gambli ng and betting services in subsector 10.E, and 
it used specific words to do so.229  Another Member specifically excluded "gambling and gambling 
related services" from the scope of its commitment under subsector 10.A.230  From these examples it 
appears that different Members have dealt with gambling and betting services in different subsectors 
of their Schedules.  But the exampl es also suggest that Members have  used specific language in order 
to make clear the location of their commitments within their own Schedules.  Furthermore, as the 
Panel noted231, the United States' argument that gambling and betting services fall under 
subsector 10.E appears to contradict its argument that gambling and betting services are comprised in 
the ordinary meaning of "sporting services" under su bsector 10.D.  As we have observed above, the 
same service cannot be covered in tw o different subsectors within the  same   Schedule.232   
186. Overall, we find it significant that the entri es made by many Members in sector 10 of their 
Schedules contain text additional to the text found in the headings and sub-headings used by the 
United States (and used in W/120).  Such Member s disaggregated their entries beyond the five 
subsectors identified in W/120 as falling within sector 10.  There is a broad range of ways in which 
this was accomplished.  Some Members used CPC codes with more digits than the codes used 
in W/120, (that is, indicating a more disaggregated service category) and some used (either in addition 
to the CPC codes or alone) precise wording to  indicate that gambling and betting services were 
somehow treated differently from other services in subsector 10.D.  Several Members used CPC 
codes to distinguish commitments with respect to sporting services from commitments with respect to 
gambling and betting services.  This  context indicates that Members seeking to distinguish the 
commitments they were making regarding gamb ling and betting services from other commitments 
they were making in subsector 10.D used specifi c language and/or CPC codes to indicate this 
distinction.  This context does not, however, provide  a definitive answer to the question whether, in 
the United States' Schedule, gamb ling and betting services fall within the ordinary meaning of the 
word "sporting",  within the ordinary meaning of the term "other recreational services", or elsewhere.   
187. The above examination leads us to the view that an examination of the term "Other 
recreational services (except sporti ng)" in its context does not clearly reveal whether, in the United 
States' Schedule to the GATS, gambling and be tting services fall within the category of "other 
                                                      
228Although subsector 10.E, "Other", figures in W/120, no such entry is included in the United States' 
Schedule. 
229Senegal listed "Gambling and betting services" under 10.E.  However, Senegal also appears to have 
made a relatively narrow commitment under 10.D, with respect to "Recreational Fishing" only.   
230See the Schedule of Bulgaria. (GATS/SC/122) 
231Panel Report, para. 6.101 . 
232Supra , para. 180. WT/DS285/AB/R 
Page 64  
 
recreational services" or within the category of "spor ting services".  Accordingly, we turn to the object 
and purpose of the GATS to obtain further guidance for our interpretation.   
188. The Panel referred to the requirement of "trans parency" found in the preamble to the GATS, 
as supporting the need for precision and clarity in scheduling, and underlining the importance of 
having Schedules that are "readily understandable by all other WTO Members, as well as by services 
suppliers and consumers".
233  The Panel also referred to the Appellate Body Report in EC – Computer 
Equipment as follows: 
The Appellate Body found that "the security and predictability of 'the 
reciprocal and mutually advantageous arrangements directed to the 
substantial reduction of ta riffs and other barriers to trade' is an object 
and purpose of the WTO Agreement, generally, as well as of GATT 1994."  This confirms the importance of the security and predictability of Members' specific commitments, which is equally an object and purpose of the GATS.
234  (footnote omitted) 
189. We agree with the Panel's characterization of these objectives, along with its suggestion that 
they reinforce the importance of Members' making clear commitments.  Yet these considerations do not provide specific assistance for determining wher e, in the United States' Schedule, "gambling and 
betting services" fall.  Accordingly, it is necessary to continue our analys is by examining other 
elements to be taken into account  in interpreting treaty provisions. 
190. In addition to context, the third paragraph of Article 31 of the  Vienna Convention   directs a 
treaty interpreter to take into account,  inter alia ,  subsequent practice establishing the agreement of 
the parties regarding the interpretation of the treaty.   Antigua argues that the "subsequent practice" of 
Members demonstrates that W/120 and the Schedulin g Guidelines must be u sed to interpret the 
United States' GATS Schedule.
235  Antigua asserts that such releva nt subsequent practice is found in 
the 2001 Scheduling Guidelines236, in a submission made by the United States regarding the 
                                                      
233Panel Report, para. 6.107. 
234Ibid., para. 6.108.  
235Antigua's response to Question 1 posed by the Panel, Panel Report, pp. C-1 to C-3. 
236Guidelines for the Scheduling of Specific Commitm ents under the General Agreement on Trade in 
Services, S/L/92.  The 2001 Scheduling Guidelines serve, in the current round of services negotiations, the same 
function as the 1993 Scheduling Guidelines served in the Uruguay Round negotiations.  The former reproduce the 1993 Scheduling Guidelines almost in their entirety, and contain some additional provisions.  The 2001 
Scheduling Guidelines were adopted by the Council for Trade in Services on 23 March 2001.    WT/DS285/AB/R 
 Page 65 
 
 
classification of energy services237, as well as in a publication by th e United States International Trade 
Commission ("USITC").238  The Panel did not reach these arguments by Antigua as it had 
found W/120 and the 1993 Scheduling Guidelines to be context.   
191. In  Japan – Alcoholic Beverages II   and  Chile – Price Band System ,  respectively, the 
Appellate Body referred to "practice" within the meaning of Article 31(3)(b) as: 
... a "concordant, common and consistent" sequence of acts or 
pronouncements which is sufficient to establish a discernible pattern implying the agreement of the parties [to a treaty] regarding its interpretation.
239 
... a discernible pattern of acts or pronouncements implying an 
agreement among WTO Members on the interpretation of [the 
relevant provision]240 
192. Thus, in order for "practice" within the mean ing of Article 31(3)(b) to be established:  
(i) there must be a common, consistent, discernible pattern of acts or pronouncements;  and (ii) those 
acts or pronouncements must imply  agreement  on the interpretation of the relevant provision.   
193. We have difficulty accepting Antigua's pos ition that the 2001 Scheduling Guidelines 
constitute "subsequent practice" revealing a common understanding that Members' specific 
commitments are to be construed in accordance wi th W/120 and the 1993 Scheduling Guidelines.  
Although the 2001 Guidelines were explicitly adopted by the Council for Trade in Services, this was 
in the context of the negotiation of  future   commitments and in order to assist in the preparation of 
offers and requests in respect of such commitment s.  As such, they do not constitute evidence of  
                                                      
237Antigua referred to document S/CSC/W/27, a proposal submitted by the United States concerning 
the classification of energy services. (Antigua's first wr itten submission to the Panel, footnote 301 to para. 173) 
Paragraph 2 of this document states that: 
These numerous energy-related activities are closely interrelated and,  taken 
as a whole, can be said to comprise the "energy sector."  Some of these 
activities cut horizontally across existing GATS sectoral classifications 
(W/120) , such as business services, communications services, construction 
services, financial services, and transportation services, among others.  
Others may involve activities that are not yet specified in existing  GATS classifications, are deeply embedded in  existing GATS classifications, or are 
not within the scope of the GATS.  (emphasis added) 
238US Schedule of Commitments under the General Agreement on Trade in Services , United States 
International Trade Commission, May 1997, p. 25. 
239Appellate Body Report, Japan – Alcoholic Beverages II , p. 13, DSR 1996:I, 97, at 106.  The 
Appellate Body, in that case, found that panel reports adopted by the GATT contracting parties do not constitute 
subsequent practice within the mean ing of Article 31(3)(b) of the Vienna Convention . 
240Appellate Body Report, Chile – Price Band System , para. 214. WT/DS285/AB/R 
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Members' understanding regardi ng the interpretation of  existing   commitments.  Furthermore, as the 
United States emphasized before the Panel, in its  Decision adopting the 2001 Guidelines, the Council 
for Trade in Services explicitly stated that they were to be "non-binding" and "shall not modify any 
rights or obligations of the Members under the GATS".
241  Accordingly, we do not consider that 
the 2001 Guidelines, in and of themselves, constitu te "subsequent practice" within the meaning of 
Article 31(3)(b) of the Vienna Convention.   
194. Nor do the two other documents relied on by Antigua constitute "s ubsequent practice".  
Although they may be relevant in identifying the United States' practice, they do not establish a common, consistent, discernible pattern of acts or pronouncements by Members as a whole.  Nor do they demonstrate a common understanding  among Members   that specific commitments are to be 
interpreted by reference to  W/120 and the 1993 Sc heduling Guidelines.  Accordingly, we do not find 
that Antigua has identified any relevant subsequent practice that can assist us in the interpretation of 
subsector 10.D of the United States' Schedule.  
195. The above reasoning leads us to the conclusion—contrary to the Panel
242—that application of 
the general rule of interpretation set out in Article 31 of the  Vienna Convention  leaves the meaning 
of "other recreational services (except sporti ng)" ambiguous and does not answer the question 
whether the commitment made by the United States in subsector 10.D of its Schedule includes a commitment in respect of gambling and betting services.   Accordingly, we are required, in this case, 
to turn to the supplementary means of interpretation provided for in Article 32 of the Vienna 
Convention.
243 
                                                      
241United States' response to Question 39 posed by the Panel, Panel Report, pp. C-63 to C-64. 
242The Panel concluded, at para. 6.110 of the Panel Report, that: 
 The US Schedule, read in the light of paragraph 16 of the Scheduling 
Guidelines, can be understood to in clude a specific commitment on gambling 
and betting services under subsector 10.D ( Recreational services (except 
sporting) ). (original italics) 
243The Panel also had recourse to such means in or der to "confirm" the meaning that it had reached 
through application of Article 31. (Panel Report, para. 6.112)  WT/DS285/AB/R 
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B. Interpretation of Subsector 10.D in A ccordance with Supplementary Means of 
Interpretation:  Article 32 of the Vienna Convention 
196. We observe, as a preliminary matter, that this appeal does  not  raise the question 
whether W/120 and the 1993 Scheduling Guide lines constitute "supplementary means of 
interpretation, including the prepar atory work of the treaty and the circumstances of its conclusion".  
Both participants agree that they do, and we see no reason to disagree.244   
197. The United States argues, however, that, because th e "ordinary meaning" of subsector 10.D of 
its Schedule is clear from an examination of the text, context (not including W/120 and the 1993 Scheduling Guidelines) a nd object and purpose, it is neither necessary nor appropriate to 
have recourse to Article 32 of the  Vienna Convention .  We disagree.  As we have explained, the 
Panel erred in characterizing W/120 and the 1993 Sc heduling Guidelines as "context".  Yet, we have 
also seen that a proper interpretation pursuant to  the principles codified in Article 31 of the  Vienna 
Convention  does not yield a clear meaning as to the scope of the commitment made by the United 
States in the entry "Other recreational services (excep t sporting)".  Accordingl y, it is appropriate to 
have recourse to the supplemental means of in terpretation identified in Article 32 of the  Vienna 
Convention .  These means include W/120, the 1993 Sche duling Guidelines, and a cover note attached 
to drafts of the United States' Schedule. 
198. Turning to the question of how the subsector 10.D entry "Other recreational services (except 
sporting)" is to be interpreted in the light of W/ 120 and the Scheduling Guidelines, we consider it 
useful to set out the relevant parts of both docum ents.  The relevant section of W/120 is as follows: 
SECTORS AND SUB-SECTORS CORRESPONDING CPC 
[...] 10. RECREATIONAL, CULTURAL  
AND SPORTING SERVICES 
 (other than audiovisual services) 
A. Entertainment services
 (including theatre,  9619 
 live bands and circus services) 
                                                      
244Some of the reasoning employed by the Panel in order to conclude (erroneously in our view) that 
these documents constituted "context" nevertheless confirms  that they constitute "preparatory work", and are 
relevant "circumstances" relating to the conclusion  of the GATS within the meaning of Article 32: 
... both W/120 and the 1993 Scheduling Guidelines are "in connexion" with 
the GATS.  Both documents were drafte d in parallel with the GATS itself, 
with the stated purpose of being used as "guides" for scheduling specific 
commitments under the GATS ... In that sense, they can be considered to 
have been "drawn up on the occasion of the conclusion of the treaty".  
(footnote omitted) 
(Panel Report, para. 6.81)   WT/DS285/AB/R 
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B. News agency services
 962 
C. Libraries, archives, museums and other  
 cultural services  963 
D. Sporting and other recreational services  964 
E. Other  
199. Thus, W/120 clearly indicates that its entry 10.D—"Sporting and other recreational 
services"—corresponds to CPC Group 964.  W/120 does not, however, contain any explicit indication 
of:  (i) whether the reference to Group 964 necessarily incorporates a reference to  each and every  
sub-category  of Group 964 within the CPC;  or (ii) how W/120 relates to the GATS Schedules of 
individual Members.   
200. With respect to the first issue, we observe  that W/120 sets out a much more aggregated 
classification list than the one found in the CP C.  Whereas W/120 contains 12 sectors (11 and one 
"other") and more than 150 subsectors, the CPC classification scheme is comprised of 10 
Sections, 69 Divisions, 295 Groups, 1,050 Classes and 1, 811 Subclasses.  The first draft classification 
list prepared by the GATT Secretariat, W/50, explai ned that one of the reasons for selecting the CPC 
as a basis for classification in the services negotiations  was that such a product-based system "allows 
a  higher degree of disaggregation and precision  to be attained should it become necessary, at a later 
stage."245  Thus, the CPC's level of disaggregation was one of the very reasons it was selected as a 
basis for a sectoral classification list.  As the CPC is a decimal system246, a reference to an aggregate 
category must be understood as a reference to all of  the constituent parts of  that category.  Put 
differently, a reference to a three-digit CPC Group should, in the absence of any indication to the 
contrary, be understood as a reference to all th e four-digit Classes and five-digit Sub-classes that 
make up the group;  and a reference to a four-dig it Class should be understood as a reference to all of 
the five-digit Sub-classes that make up that Class. 
201. In the CPC, Group 964, which corresponds to subsector 10.D of W/120 (Sporting and other 
recreational services), is broken down into the following Classes and Sub-classes: 
                                                      
245MTN.GNS/W/50, para. 6. (emphasis added) 
246The CPC hierarchy consists of Sections designated by one-digit codes, Divisions designated by two-
digit codes, Groups designated by three-digit codes, Classes designated by four-digit codes, and Subclasses 
designated by five-digit codes.    WT/DS285/AB/R 
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964 Sporting and other recreational services   9641 Sporting services   96411 Sports event promotion services   96412 Sports event organization services 
  96413 Sports facility operation services 
  96419 Other sporting services   9649 Other recreational services   96491 Recreation park and beach services 
  96492 Gambling and betting services 
   96499 Other recreational services n.e.c. 
Thus, the CPC Class that corresponds to "Sporting services" (9641) does  not  include gambling and 
betting services.  Rather, the Sub-class for gamb ling and betting services (96492) falls under the Class 
"Other recreational services" (9649).   
202. W/120 does not shed light on the issue of how it relates to individual Member's Schedules.  
That issue is, however, addressed in the 1993 Scheduling Guidelines:   
HOW SHOULD ITEMS BE SCHEDULED?
 
15. Schedules record, for each sector, the legally enforceable 
commitments of each Member.  It is therefore vital that schedules be clear, precise and based on a common format and terminology.  This 
section describes how commitments should be entered in schedules.  
... 
A.  How to describe committed sectors and subsectors
 
16. The legal nature of a schedule as well as the need to evaluate 
commitments, require the greatest possible degree of clarity in the description of each sector or subsector scheduled.  In general the 
classification of sectors and subsectors should be based on the 
Secretariat's revised Services
 Sectoral  Classification  List .  [W/120]  
Each sector contained in the Secretariat list is identified by the corresponding Central Product Classi fication (CPC) number.  Where 
it is necessary to refine further a sectoral classification, this should be 
done on the basis of the CPC or other internationally recognised 
classification (e.g. Financial Services Annex).  The most recent breakdown of the CPC, including explanatory notes for each subsector, is contained in the UN Provisional
 Central  Product  
Classification . WT/DS285/AB/R 
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Example
: A Member wishes to indicate an offer or commitment in 
the subsector of map-making services.  In the Secretariat list, this service would fall under the general heading "Other Business Services" under "Related scientific and technical consulting services" (see item l.F.m).  By 
consulting the CPC, map-making can be found under the 
corresponding CPC classification number 86754.  In its offer/schedule, the Member would then enter the subsector under the "Other Business Services" section of its schedule as follows:  
Map-making services (86754) 
 If a Member wishes to use its own subsectoral classification 
or definitions it should provide c oncordance with the CPC in the 
manner indicated in the above example.  If this is not possible, it should give a sufficiently detailed definition to avoid any ambiguity 
as to the scope of the commitment . (emphasis added;  footnote 
omitted) 
203. The Scheduling Guidelines thus underline the importance of using a common format and 
terminology in scheduling, and express a clear preference for parties to use W/120 and the CPC 
classifications in their Schedules.  At the same time , the Guidelines make clear that parties wanting to 
use their own subsectoral classification or definitions —that is, to disaggregate in a way that diverges 
from W/120 and/or the CPC—were to do so in a "su fficiently detailed" way "to avoid any ambiguity 
as to the scope of the commitment."  The example given in the Scheduling Guidelines illustrates how 
to make a positive commitment with respect to a disc rete service that is more disaggregated than a 
service subsector identified in W/120.  It is reasona ble to assume that the parties to the negotiations 
expected the same technique to be applied to  exclude   a discrete service from the scope of a 
commitment, when the commitment is made in a subsector identified in W/120 and the excluded 
service is more disaggregated than that subsector. 
204. In our view, the requisite clarity as to the scope of a commitment could not have been 
achieved through mere omission of CPC codes, partic ularly where a specific sector of a Member's 
Schedule, such as sector 10 of the United States' Sche dule, follows the structure of W/120 in all other 
respects, and adopts   precisely  the same terminology as used in W/120.  As discussed above, W/120 
and the 1993 Scheduling Guidelines were prepared a nd circulated at the request of parties to the 
Uruguay Round negotiations for the express purpose of assisting those parties in the preparation of 
their offers.  These documents undoubtedly served, t oo, to assist parties in reviewing and evaluating 
the offers made by others.  They provided a co mmon language and structure which, although not 
obligatory, was widely used and relied upon.  In su ch circumstances, and in the light of the specific 
guidance provided in the 1993 Scheduling Guidelines, it is reasonable to assume that parties to the 
negotiations examining a sector of a Schedule that tr acked so closely the language of the same sector  WT/DS285/AB/R 
 Page 71 
 
 
in W/120 would—absent a clear indication to the cont rary—have expected the sect or to have the same 
coverage as the corresponding W/120 sector.  This is another way of stating that, as the Panel 
observed, "unless otherwise indicated in the Schedule, Members were assumed to have relied 
on W/120 and the corresponding CPC references."247   
205. Accordingly, the above excerpt from the 1993 Scheduling Guidelines, together with the 
linguistic similarities between the two subsectors, provide strong support for interpreting subsector 
10.D of the United States' Schedule as correspondi ng to subsector 10.D of W/120, notwithstanding 
the absence of CPC codes in the United States' Sc hedule.  Subsector 10.D of W/120, in turn, 
corresponds to Class 964 of CPC, along with its sub-categories. 
206. We observe that another element of the prep aratory work of the GATS suggests that the 
United States itself understood the Scheduling Guidelines in this way and sought to comply with them 
in the drafting of its GATS Schedule.  Several dr afts of  the United States' Schedule included the 
following cover note: 
[E]xcept where specifically note d, the scope of the sectoral 
commitments of the United Stat es corresponds to the sectoral 
coverage in the Secretariat's Services Sectoral Classification List (MTN.GNS/W/120, dated 10 July 1991).
248 
207. These explanatory notes confirm that the Un ited States used W/120 and sought to follow 
the 1993 Scheduling Guidelines.  Although the United  States emphasizes that this note did not form 
part of the final version of the United States' GA TS Schedule, the reasons why the note was omitted 
are unclear249 and, in any event, the commitment made  by the United States in subsector 10.D 
remained the same in the drafts th at had this cover note and in the final version of the Schedule.  In 
other words, the other parties to the negotiations c ould not have been expected to understand that the 
mere omission of the cover note from the final version of the United States' Schedule somehow modified the scope of the commitment undertaken in Sector 10.   
208. In our view, therefore, the relevant entry in the United States' Schedule, "Other recreational 
services (except sporting)", must be interpreted as  excluding  from the scope of its specific 
commitment services corresponding to CPC class 9641,  "Sporting services".  For the same reasons, 
                                                     
 
247Panel Report, para. 6.106. 
248Communication from the United States of America – Draft Final Schedule of the United States of 
America Concerning Initial Commi tments, MTN.GNS/W/112/Rev.3, 7 December 1993.  See also 
MTN.GNS/W/112/Rev.2, 1 October 1993. 
249Before the Panel, and at the oral hearing in this appeal, the European Communities explained that 
such notes were removed as part of the process of "technical verification" of schedules and that the United States could not have unilaterally amended the scope of  its commitments after 15 December 1993.  See the 
parties' responses to Question 3 posed by the Panel, Panel Report, pp. C-22ff. WT/DS285/AB/R 
Page 72  
 
the entry must be read as  including  within the scope of its commitment services corresponding to 
CPC 9649, "Other recreational services", incl uding Sub-class 96492, "Gambling and betting 
services". 
209. Finally, we consider briefly the United States' ch allenge to the Panel's use, in interpreting the 
United States' Schedule, of a document published by the USITC.  The United States submits that the 
Panel's reliance on this document "reflects a mis guided and erroneous atte mpt to exaggerate the 
importance of a document that has no relevance under the customary rules  of interpretation  of 
international law".
250 
210. The Office of the United States Trade Represen tative delegated to the USITC responsibility 
for maintaining and updating, as necessary, the Un ited States' Schedule.  In 1997, the USITC 
published an explanatory text that,  inter alia , explained the relationship between United States' 
Schedule entries and the CPC.  One stated  purpose of the document is to clarify " how the service 
sectors referenced in the GATT Secretariat's list, the CPC System, and the U.S. Schedule 
correspond ".251  The table of concordance set out in that document clearly indicates that 
subsector 10.D of the United Stat es' Schedule "corresponds" to CPC 964.252  
211. The Panel did not explain clearly how it used this document in interpreting the United States' 
Schedule.  The Panel considered that, although th e USITC Document did not constitute a "binding 
interpretation", it nevertheless "has probative value as to how the US government views the structure 
and the scope of the US Schedule, and, hence, its GATS obligations."253  The document was dealt 
with under the heading "Other supplementary means of  interpretation".  In this context, the Panel 
observed that "Article 32 of the  Vienna Convention  is not necessarily limited to preparatory material, 
but may allow treaty interpreters to take into consideration other relevant material".254  Yet the Panel 
also referred to the principle of "acquiescence" and to a commentator's statement that "Article 31:3(b) 
                                                      
250United States' appellant's submission, para. 83. (original emphasis) 
251Panel Report, para. 6.132 (quoting from p.viii of  the USITC document). (emphasis added by the 
Panel)  The USITC document also explains, on the same page, that: 
In preparing national schedules, countries were requested to identify and 
define sectors and subsectors in accordan ce with the GATT Secretariat's list, 
which lists sectors and their respective CPC numbers.  Accordingly, foreign 
schedules frequently make explicit references to the CPC numbers.  The 
U.S. Schedule makes no explicit references to CPC numbers, but it corresponds closely with th e GATT Secretariat's list. 
252US Schedule of Commitments under the General Agreement on Trade in Services , United States 
International Trade Commission, May 1997, p. 25.  
253Panel Report, para. 6.133. 
254Ibid., para. 6.122.  WT/DS285/AB/R 
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[of the  Vienna Convention ] might also apply".255  Notwithstanding these ambiguities, it is clear from 
the Panel's reasoning that it used the USITC pub lication to "confirm" its interpretation of 
subsector 10.D in the United States' Schedule.256  In other words, the Panel's interpretation did not 
depend on its treatment of the USITC document.   
212. We have already determined that the Panel comm itted certain errors in interpreting the United 
States' Schedule.  Nevertheless, we have determ ined that a proper interpretation according to the 
principles codified in Articles 31 and 32 of the  Vienna Convention  leads to the same result that the 
Panel reached, namely, that subsector 10.D of the United States' GATS Schedule includes a specific commitment with respect to gambling and betting services.  In the light of this finding, we need not decide whether the Panel erred in its treatment of the USITC Document.   
C. Summary 
213. Based on our reasoning above, we reject the United States' argument that, by excluding 
"sporting" services from the scope of its commitment  in subsector 10.D, the United States excluded 
gambling and betting services from the scope of  that commitment.  Accordingly, we uphold , albeit for 
different reasons, the Panel's finding, in pa ragraph 7.2(a) of the Panel Report, that: 
... the United States' Schedule under the GATS includes specific 
commitments on gambling and betting services under subsector 10.D. 
VI. Article XVI of the GATS:  Market Access 
214. Article XVI of the GATS sets out specific oblig ations for Members that apply insofar as a 
Member has undertaken "specific ma rket access commitments" in its Sc hedule.  The first paragraph of 
Article XVI obliges Members to accord services and service suppliers of other Members "no less favourable treatment than that provided for under th e terms, limitations a nd conditions agreed and 
specified in its Schedule."  The second paragraph of Article XVI defines, in six sub-paragraphs, 
measures that a Member, having undertaken a specif ic commitment, is not to adopt or maintain, 
"unless otherwise specified in its Schedule".  Th e first four sub-paragraphs concern quantitative 
limitations on market access;  the fifth sub-paragrap h covers measures that restrict or require specific 
types of legal entity or joint venture through which a service supplier may supply a service;  and the 
sixth sub-paragraph identifies limitations on the participation of foreign capital. 
                                                     
 
255Panel Report, para. 6.122 (referring in footnote to A. Aust, Modern Treaty Law and Practice , 
Cambridge University Press, 2000, p. 200). 
256Ibid., para. 6.133. WT/DS285/AB/R 
Page 74  
 
215. The Panel found that the United States' Sche dule includes specific commitments on gambling 
and betting services, and we have uphe ld this finding.  The Panel then  considered the consistency of 
the measures at issue with the Un ited States' obligations under Article  XVI of the GATS.  The scope 
of those obligations depends on the scope of the specific commitment made in the United States' Schedule.  In this case, the relevant entry fo r mode 1 supply in the market access column of 
subsector 10.D of the United States' Schedule reads "None".
257  In other words, the United States has 
undertaken to provide full market access, within the m eaning of Article XVI, in respect of the services 
included within the scope of its subsector 10.D co mmitment.  In so doing, it has committed not to 
maintain any of the types of measures listed in  the six sub-paragraphs of Article XVI:2.   
216. Before the Panel, Antigua claimed that, in main taining measures that prohibit the cross-border 
supply of gambling and betting services, the United St ates is maintaining quantitative limitations that 
fall within the scope of sub-paragra phs (a) and (c) of Article XVI and th at are, therefore, inconsistent 
with the market access commitment undertaken in subsector 10.D of the United States' Schedule.  The 
Panel took the view that a prohibition on the supply of certain services effectively "limits to zero" the 
number of service suppliers and number of service operations relating to that service.  The Panel 
reasoned that such a prohibition results in a "zero quota" and, therefore, constitutes a "'limitation on 
the number of service suppliers in the form of numerical quotas' within the meaning of 
Article XVI:2(a)" and "a limitation 'on the total number of service operations or on the total quantity 
of service output ... in the form of quotas' within the meaning of Article XVI:2(c)".258  
217. In consequence, the Panel found that, by ma intaining the following measures, the United 
States acts inconsistently with its oblig ations under Article XVI of the GATS: 
(i) Federal laws 
(1) the Wire Act; (2) the Travel Act (when read together with the relevant state laws);
  and 
(3) the Illegal Gambling Business Act (when read together with the relevant state 
laws). 
(ii) State laws: 
(1) Louisiana :  Section 14:90.3 of the Louisiana Revised Statutes (Annotated); 
(2) Massachusetts :  Section 17A of chapter 271 of the Annotated Laws of 
Massachusetts; 
                                                      
257This notation is the opposite of the notation "Unbound", which means that a Member undertakes no 
specific commitment. 
258Panel Report, paras. 6.338 and 6.355.  WT/DS285/AB/R 
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(3) South Dakota :  Section 22-25A-8 of the South Dakota Codified Laws;  and 
(4) Utah :  Section 76-10-1102(b) of the Utah Code (Annotated).259 
A. Preliminary Matters 
218. The United States appeals both the Panel's interp retation of sub-paragr aphs (a) and (c) of 
Article XVI, as well as its application of those provisi ons to the measures at issue.  We have already 
determined that the Panel should not have made fi ndings under Article XVI with respect to certain 
state laws because Antigua  had not made out a  prima facie case in respect of these measures.  Having 
already reversed the Panel's findings regarding these state laws260, we need not consider them further 
in our assessment of this part of the United States' appeal.  Accordingly, our analysis below is limited 
to a review of the Panel's interpre tation of sub-paragraphs (a) and (c ) of Article XVI:2, as well as to 
its application of that interpretation to the three  federal  statutes at issue in this case. 
219. We also note that the Notice of Appeal file d by the United States appears to indicate a 
separate, independent challenge to:   
The Panel's finding that a WTO Member does not respect its GATS 
market access obligations under Artic le XVI:2 if it limits market 
access to any part of a scheduled sector or subsector, or if it restricts any means of delivery under mode 1 with respect to a committed sector.
261   
220. The United States did not, however, adduce any arguments in support of such a challenge in 
its appellant's submission.  Nor did the United States expressly refer to, or request us to reverse, any  
paragraph of the Panel Report in which the "findi ng" referred to in the above excerpt is found.  
Accordingly, we understand that the United States does  not  challenge separately the Panel's findings 
as regards restrictions on the supply of  part of a sector , or as regards restrictions on  part of a mode of 
supply  (that is, on one or more means of supplying a given service).262  In response to questioning at 
                                                      
259See Panel Report, paras. 6.421 and 7.2(b).  The Pa nel's findings that specific measures afforded 
treatment less favourable than that provided for in the United States' schedule are found in paragraphs 6.365, 
6.373, 6.380, 6.389, 6.395, and 6.412. 
260Supra , paras. 154 and 155. 
261United States' Notice of Appeal, para. 3(c), supra , footnote 22. 
262We understand the relevant findings to be those in paragraphs 6.287 and 6.290 of the Panel Report.  
The Panel found that:   (i) as regards a particular serv ice, a Member that has made an unlimited market access 
commitment under mode 1 commits itself not to maintain measures that prohibit the use of one, several or all 
means of delivery of that se rvice;  and (ii) a Member that has made  a market access commitment in a sector or 
subsector has committed itself in respect of all services that fall within the relevant sector or subsector.   WT/DS285/AB/R 
Page 76  
 
the oral hearing, the United States confirmed that its appeal focuses on the Panel's interpretation of 
sub-paragraphs (a) and (c) of Article XVI:2
263, and we shall limit our examination accordingly. 
B. The Meaning of Sub-paragraphs (a) and (c) of Article XVI 
221. The chapeau to Article XVI:2, and s ub-paragraphs (a) and (c), provide: 
In sectors where market-access commitments are undertaken, the 
measures which a Member shall not maintain or adopt either on the 
basis of a regional subdivision or on the basis of its entire territory, 
unless otherwise specified in its Schedule, are defined as: 
(a) limitations on the number of service suppliers 
whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an 
economic needs test; ... 
(c) limitations on the total number of service operations 
or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;
 9 
  
9 Subparagraph 2(c) does not cover measures of a Member 
which limit inputs for the supply of services. 
222. In its appeal, the United States emphasizes that  none   of the measures at issue states any 
numerical units or is in the form of quotas and that, therefore,  none   of those measures falls within the 
scope of sub-paragraph (a) or (c) of Article XVI:2.  The United St ates contends that the Panel erred in 
its interpretation of sub-paragraphs  (a) and (c) of Article XVI:2 by failing to give effect to certain 
elements of the text of these provisions, notably to  key terms such as "form" and "numerical quotas".  
According to the United States, the Panel appear s to have been influenced by a "misguided"264 
concern that prohibitions on foreign service suppliers should not escape the application of Article XVI 
simply because they are not expressed  in numerical terms.  The United States asserts that the Panel 
ignored the fact that such prohibitions remain subject  to other provisions of the Agreement, including 
Articles XVII and VI, and contends that, in its  approach, the Panel  improperly expanded the 
obligations in Article XVI.  For the United Stat es, Members that have made a specific commitment 
under Article XVI have committed themselves not to ma intain the precisely defined limitations set out 
                                                      
263In response to a question on this issue at the oral hearing, the United States stated that its arguments 
on these points are in the nature of "subsidiary" or "supporting" arguments.  According to the United States, 
these arguments illustrate why the Panel's interpretation of sub-paragraphs (a) and (c) of Article XVI was "unreasonable". 
264United States' appellant's submission, para. 98.  WT/DS285/AB/R 
 Page 77 
 
 
in Article XVI:2;  Members have  not  committed themselves to eliminate all other limitations or 
restrictions that may impede the supply of the relevant services. 
1. Sub-paragraph (a) of Article XVI:2  
223. In interpreting sub-paragraph (a) of Ar ticle XVI:2, the Panel determined that: 
[a prohibition on one, several or all means of delivery cross-border] 
is a "limitation on the number of service suppliers in the form of 
numerical quotas" within the meaning of Article XVI:2(a) because it 
totally prevents the use by service suppliers of one, several or all means of delivery that are included in mode 1.
265 
224. The United States submits that this interpretation ignores the text of sub-paragraph (a), in 
particular the meaning of "form" and "numerical  quotas", and erroneously includes within the scope 
of Article XVI:2(a) measures that have the  effect  of limiting the number of service suppliers or 
output to zero.  Although the Panel opined that any other result would be "absurd", the United States 
stresses the opposite—that a contrary result woul d be consistent with the balance between 
liberalization and the right to regulate that is reflected in the GATS.   
225. Article XVI:2(a) prohibits "limitations on the numbe r of service suppliers whether in the form 
of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic 
needs test."  In interpreting this provision we obser ve, first, that it refers to restrictions "on the 
number  of service suppliers", as well as to " numerical  quotas" .  These words reflect that the focus of 
Article XVI:2(a) is on limitations relati ng to numbers or, put differently, to  quantitative  limitations. 
226. The United States urges us to give proper effect to the terms "in the form of" in sub-
paragraph (a) and, to that end, re fers to dictionary definitions to establish the meaning of "form" in 
Article XIV(a).  Yet even these definitions suggest a degree of ambiguity as to the scope of the word 
"form".  For example, "form" covers both the mode  in which a thing "exists", as well as the mode in 
which it "manifests itself".  This suggests a broad meaning for the term "form".266 
227. The words "in the form of" in sub-paragraph (a) re late to all four of the limitations identified 
in that provision.  It follows, in our view, that the four types of limitations, themselves, impart 
meaning to "in the form of".  Looking at these four types of limitations in Article XVI:2(a), we begin 
with "numerical quotas".  These words are not defined in the GATS.  According to the dictionary 
                                                      
265Panel Report, para. 6.338. 
266In footnote 166 to paragraph 105 of its appellant's submission, the United States refers to " The New 
Shorter Oxford English Dictionary,  p. 1006, which defines 'form' inter alia  as 'shape, arrangement of parts,' or 
'[t]he particular mode in which a thing exists or manifests itself,' or, in linguistics, 'the external characteristics of 
a word or other unit as distinct from its meaning". WT/DS285/AB/R 
Page 78  
 
definitions provided by the United States, the meaning of the word "numerical" includes 
"characteristic of a number or numbers".
267  The word "quota" means,  inter alia ,  "the maximum 
number or quantity belonging, due, given, or perm itted to an individual or group";  and "numerical 
limitations on imports or exports".268  Thus, a "numerical quota" within Article XVI:2(a) appears to 
mean a quantitative limit on the number of service s uppliers.  The fact that the word "numerical" 
encompasses things which "have the characteristic s of a number" suggests that limitations "in the 
form of a numerical quota" would encompass limitati ons which, even if not in themselves a number, 
have the characteristics of a number.  Because zero is  quantitative   in nature, it can, in our view, be 
deemed to have the "characteristics of" a number—that is, to be "numerical".   
228. The second type of limitation mentioned in sub- paragraph (a) is "limita tions on the number of 
service suppliers... in the form of ... monopolies".  Although the word "monopolies", as such, is not 
defined, Article XXVIII(h) of the GATS defines a "monopoly supplier of a service" as:   
... any person, public or private, whic h in the relevant market of the 
territory of a Member is authorized or established formally  or in 
effect   by that Member as the sole supplier of that service. (emphasis 
added) 
229. The term "exclusive service suppliers", which is used to identify the third limitation in 
Article XVI:2(a) ("limitations on the number of service suppliers...in the form of exclusive service 
suppliers"), is defined in Article VIII:5 of the GATS, as: 
... where a Member, formally  or in effect , (a) authorizes or 
establishes a small number of service suppliers and ( b) substantially 
prevents competition among those suppliers in its territory. (emphasis 
added) 
230. These two definitions suggest that the referenc e, in Article XVI:2(a), to limitations on the 
number of service suppliers "in the form of m onopolies and exclusive service suppliers" should be 
read to include limitations that are in form  or in effect ,  monopolies or exclusive service suppliers.   
231. We further observe that it is not clear that "lim itations on the number of service suppliers ... in 
the form of ... the requirements of an economic needs test" must take a particular "form."269  Thus, this 
                                                      
267The United States, at footnote 167 to paragraph 105 of its appellant's submission, observes that the 
"New Shorter Oxford English Dictionary, at p. 1955, defines 'numerical' as '[ o]f, pertaining to, or characteristic 
of a number or numbers; (of a figure, symbol, etc.) expressing a number.'" 
268The United States' appellant's submission, footnote 167 to para. 105 (referring to the New Shorter 
Oxford English Dictionary,  p. 2454). 
269See the WTO Secretariat Note on "Economic Needs Tests", S/CSS/W/118, 30 November 2001, 
para. 4.    WT/DS285/AB/R 
 Page 79 
 
 
fourth type of limitation, too, suggests that the words "in the form of" must not be interpreted as 
prescribing a rigid mechanical formula. 
232. This is not to say that the words "in the form  of" should be ignored or replaced by the words 
"that have the effect of".  Yet, at the same time, th ey cannot be read in isolation.  Rather, when viewed 
as a whole, the text of sub-paragraph (a) supports th e view that the words "in the form of" must be 
read in conjunction with the words that precede them—"limitations on the  number   of service 
suppliers"—as well as the words that follow them, including the words " numerical  quotas". (emphasis 
added)  Read in this way, it is clear that the thrust of sub-paragraph (a) is not on the  form  of 
limitations, but on their  numerical ,  or  quantitative , nature. 
233. Looking to the context of sub-paragraph (a), we observe that the chapeau to Article XVI:2, 
refers to the purpose of the sub-paragraphs that  follow, namely, to define the measures which a 
Member shall not maintain or adopt for sectors  where market access commitments are made .  The 
chapeau thus contemplates circumstances in which a Member's Schedule   includes  a commitment to 
allow market access, and points out that the function of the sub-paragraphs in  Article XVI:2 is to 
define certain limitations that are prohibited unless specifically entered in the Member's Schedule.  
Plainly, the drafters of sub-paragraph (a) had in  mind limitations that would impose a maximum limit 
of  above  zero.  Similarly, Article II:1(b) of the GATT 1994 prohibits Members from imposing duties 
"in excess of" the bound duty rate.  Such bound duty rate will usually be  above  zero.  Yet this does 
not mean that Article II:1(b) does not also refer to bound rates set at zero.   
234. It follows from the above that we find the follo wing reasoning of the Panel to be persuasive: 
[t]he fact that the terminology [of Article XVI:2(a)] embraces lesser 
limitations, in the form of quotas greater than zero, cannot warrant 
the conclusion that it does not embrace a greater limitation 
amounting to zero.  Paragraph (a) does not foresee a "zero quota" because paragraph (a) was not drafted to cover situations where a Member wants to maintain full limitations.  If a Member wants to maintain a full prohibition, it is assumed that such a Member would 
not have scheduled such a sector or subsector and, therefore, would 
not need to schedule any limitation or measures pursuant to Article XVI:2.
270 
235. As for the first paragraph of Article XVI, we note that it does not refer expressly to any 
requirements as to form, but simply links a Member's market access obligations in respect of scheduled services to "the terms, limitations and c onditions agreed and specified in its Schedule".  
                                                     
 
270Panel Report, para. 6.331. WT/DS285/AB/R 
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Neither this provision, nor the object and purpose of the GATS as stated in its preamble
271, readily 
assists us in answering the question whether the reference in Article XVI:2(a) to "limitations on the 
number of service suppliers ... in the form of nume rical quotas" encompasses the type of measure at 
issue here, namely, a prohibition on the supply of a service in respect of which a specific commitment has been made.  
236. In our view, the above examination of the words of Article XVI:2(a) read in their context and 
in the light of the object and purpose of the GATS suggests that the words "in the form of" do not 
impose the type of precisely defined constraint that the United States suggests.  Yet certain 
ambiguities about the meaning of the provision remain.  The Panel, at this stage of its analysis, observed that any suggestion that the "form" requirement must be strictly interpreted to refer  only  to 
limitations "explicitly couched in numer ical terms" leads to "absurdity".
272  In either circumstance, 
this is an appropriate case in which to have recour se to supplementary means of interpretation, such as 
preparatory work.   
237. We have already determined that the 1993 Scheduling Guidelines constitute relevant 
preparatory work.273  As the Panel observed, those Guidelin es set out an example of the type of 
limitation that falls within the scope of sub-paragr aph (a) of Article XVI:2, that is, of the type of 
measures that will be inconsistent with Article XVI if a relevant commitment has been made and 
unless the Member in question has listed it as a condition or limitation in its Schedule.  That example is:  "nationality requirements for suppliers of services (equivalent to zero quota)".
274  This example 
confirms the view that measures equivalent to a zer o quota fall within the scope of Article XVI:2(a).   
238. For the above reasons, we are of the view that limitations amounting to a zero quota are  
quantitative limitations and fall within the scope of Article XVI:2(a).   
239. As we have not been asked to revisit the othe r elements of the Panel's reasoning on this 
issue—in particular its findings regarding limitations on market access in respect of part of a 
                                                      
271We recall that the Panel identified, as forming part of the object and purpose of the GATS:  
transparency, the progressive liberaliza tion of trade in services, and Members'  right to regulate trade in services 
provided that they respect the rights of other Members under the GATS. (Panel Report, paras. 6.107-6.109, and 
6.314-6.317) 
272In paragraph 6.332 of the Panel Report, the Panel reasoned that: 
To hold that only restrictions explicitly couched in numerical terms fall 
within Article XVI:2(a) would produce absurd results.  It would, for example, allow a law that explicitly provides that "all foreign services are 
prohibited" to escape the application of Article XVI, because it is not 
expressed in numerical terms.  
273Supra, para. 196. 
274See 1993 Scheduling Guidelines, para. 6.    WT/DS285/AB/R 
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committed sector275, and limitations on one or more means of cross-border delivery for a committed 
service276—we therefore,  uphold   the Panel's finding that: 
[a prohibition on one, several or all means of delivery cross-border] 
is a "limitation on the number of service suppliers in the form of 
numerical quotas" within the meaning of Article XVI:2(a) because it 
totally prevents the use by service suppliers of one, several or all means of delivery that are included in mode 1.
277 
2. Sub-paragraph (c) of Article XVI:2  
240. In interpreting sub-paragraph (c) of Article XVI: 2, the Panel observed that the wording of the 
provision "might perhaps be taken to imply that any quota has to be expressed in terms of designated 
numerical units".278  However, after further analysis and, in particular, after comparing the English 
version of the provision with its French and Spanis h counterparts, the Panel found that sub-paragraph 
(c) does  not  mean that any quota must be expressed in term s of designated numerical units if it is to 
fall within the scope of that provision.  Instead, according to the Panel, the "correct reading of 
Article XVI:2(c)" is that limitations referred to under that provision may be:  (i) in the form of 
designated numerical units;  (ii) in the form of quotas;  or  (iii) in the form of the requirement of an 
economic needs test.279 
241. The Panel then found that, where a specific co mmitment has been undertaken in respect of a 
service, a measure prohibiting one or more means of delivery of that service is: 
... a limitation "on the total number of service operations or on the 
total quantity of service output ... in the form of quotas" within the meaning of Article XVI:2(c) because it ... results in a "zero quota" on one or more or all means of delivery include[d] in mode 1.
280 
242. The United States asserts that, in so finding, the Panel used an incorrect reading of the French 
and Spanish texts to arrive at an interpretation that  is inconsistent with the ordinary meaning of the 
English text.  Specifically, the Panel relied upon the presence of commas in the French and Spanish 
versions of the text—but not in the English versi on—in order to find that sub-paragraph (c) identifies 
three  types of limitations.  The United States argues that , when properly interpre ted, sub-paragraph (c) 
identifies only  two  types of limitations.  The United States adds that the measures at issue in this case 
                                                      
275Panel Report, para. 6.335. 
276Ibid., para. 6.338. 
277Ibid. 
278Ibid., para. 6.343. 
279Ibid., para. 6.344. 
280Ibid., para. 6.355. WT/DS285/AB/R 
Page 82  
 
cannot in any way be construed as falling within the scope of either of the  two  limitations defined in 
sub-paragraph (c).  
243. Sub-paragraph (c) refers to the following measures: 
limitations on the total number of service operations or on the 
total quantity of service output expressed in terms of designated numerical units in the form of quotas or the 
requirement of an economic needs test.
  
244. The Panel essentially determined that,  notwithstanding   the absence of a comma between 
"terms of designated numerical units" and "in the form of quotas" in the  English   version, the phrase 
should, in order to be read in a manner consistent  with the French and Spanish versions, be read  as if  
such a comma existed—that is, as if expressed in "terms of designated numerical units" and "in the 
form of quotas" were disjunctive phrases, each of which modifies the word "limitations" at the beginning of the provision.  The Panel relied on the fact that such a comma  does  exist in both the 
French and Spanish versions of the provision.
281  The United States argues, however, based on a 
detailed analysis of French grammar, that the existe nce of the comma in the French version is, in fact, 
consistent with the absence of a comma in the En glish version, and that both versions mean that 
Article XVI:2(c) identifies only   two  limitations.282   
245. Ultimately, we are not persuaded that the key to  the interpretation of this particular provision 
is to be found in a careful dissection of the us e of commas within its grammatical structure.  
Regardless of which language vers ion is analyzed, and of the imp lications of comma placement (or 
lack thereof),  all  three language versions are grammatically  ambiguous.  All three can arguably be 
read as identifying two limitations on the total number  of service operations or on the total quantity of 
service output.283  All three can also arguably be read as identifying  three  limitations on the total 
number of service operations or on the total quantity of service output.284  The mere presence or 
absence of a comma in Article XVI:2(c) is not  determinative of the issue before us. 
                                                      
281The French version reads "limitati ons concernant le nombre total d'opérations de services ou la 
quantité totale de services produits, exprimées en un ités numériques déterminées, sous forme de contingents ou 
de l'exigence d'un examen des besoins économiques";  and the Spanish version reads "limitaciones al número 
total de operaciones de servicios o a la cuantía total de  la producción de servicios, expresadas en unidades 
numéricas designadas, en forma de contingentes o me diante la exigencia de una prueba de necesidades 
económicas". 
282United States' appellant's submission, paras. 114-120. 
283That is:  (i) limitations ... expressed in terms of designated numerical units in the form of quotas;  or 
(ii) limitations ... expressed in terms of th e requirement of an economic needs test. 
284That is:  (i) limitations ... expressed in terms of  designated numerical units;  (ii) limitations ... 
expressed ... in the form of quotas;  or (iii) limitations ... expressed in terms of the requirement of ...  an 
economic needs test.  WT/DS285/AB/R 
 Page 83 
 
 
246. We find it more useful, and appropriate, to look to the language of the provision itself for its 
meaning.  Looking at the provision generally, we see that the first clause of sub-paragraph (c) deals 
with the  target  of the limitations covered by that provision.   There are two such types of limitations:  
on the number of service operations;  and on the quantity of service output.  Both are  quantitative  in 
nature.  The second part of the provision provides more detail as to the  type  of limitations—relating 
to those service operations or output—that fall within sub-paragraph (c).  These are:   "designated 
numerical units in the form of quotas or the requireme nt of an economic needs test".  The second part 
of the provision clearly modifies the first part of the provision (service operations, service output).  Yet certain elements of the second part apply differen tly to the two elements of the first part.  For 
example, in its ordinary sense, the term "numerical units" is more naturally used to refer to "output" 
than to "operations". 
247. In our view, by combining, in sub-paragraph (c), the elements of the first clause of 
Article XVI:2(c) and the elements in the second part  of the provision, the parties to the negotiations 
sought to ensure that their provision covered certain types of limitations, but did not feel the need to 
clearly demarcate the scope of each such element.  On the contrary, there is scope for overlap between 
such elements:  between limitations on the num ber of service operations and limitations on the 
quantity of service output, for example, or between limitations in the form of quotas and limitations in 
the form of an economic needs test.  That sub-paragraph (c) applies in respect of all four modes of supply under the GATS also suggests the limitations  covered thereunder canno t take a single form, 
nor be constrained in a formulaic manner.  Noneth eless, all types of limitations in sub-paragraph (c) 
are quantitative in nature, and all restrict market ac cess.  For these reasons, we are of the view that, 
 even if  sub-paragraph (c) is read as referring to only  two  types of limitations, as contended by the 
United States, it does not follow that sub-paragraph (c ) would not catch a measure equivalent to a zero 
quota.  
248. To the extent that the above interpretation leaves a degree of ambiguity as to the proper 
meaning of Article XVI:2(c), we consider it useful to  resort to supplementary means of interpretation.  
The market access obligations set forth in Article XV I were intended to be obligations in respect of 
 quantitative , or "quantitative-type"
285, measures.  The difficulties faced by the negotiating parties 
concerned not  whether  Article XVI covered quantitative measu res—for it was clear that it did—but 
rather how to "know where the line should be drawn between quantitative and qualitative 
measures".286   
                                                      
285Statement by the Co-Chairman at the meeting of 17-27 September 1991, MTN.GNS/45, para. 16. 
286Ibid. WT/DS285/AB/R 
Page 84  
 
249. We also consider it appropriate to refer to  the 1993 Scheduling Guidelines as preparatory 
work.  These Guidelines set out an example of the type of measure covered by sub-paragraph (c) of 
Article XVI:2.  They refer to "[r]estrictions on broadcasting time available for foreign films"
287, 
without mentioning numbers or units.  
250. The strict interpretation of Article XVI:2(c) a dvanced by the United States would imply that 
only limitations that contain an express reference to numbered units could fall within the scope of that 
provision.  Under such an interpretation, sub-paragr aph (c) could not cover, for example, a limitation 
expressed as a percentage or described using words su ch as "a majority".  It is neither necessary nor 
appropriate for us to draw, in the abstract, th e line between quantitative and qualitative measures, and 
we do not do so here.  Yet we are satisfied that a prohibition on the supply of services in respect of 
which a full market access commi tment has been undertaken is a quantitative limitation on the supply 
of such services.   
251. In this case, the measures  at i ssue, by prohibiting the supply of services in respect of which a 
market access commitment has b een taken, amount to a "zero quota" on service operations or output 
with respect to such services.  As such, they fall within the scope of Article XVI:2(c).   
252. For all of these reasons, we  uphold   the Panel's finding, in paragraph 6.355 of the Panel 
Report, that a measure prohibiting the supply of certain services where specific commitments have been undertaken is a limitation: 
... within the meaning of Article XVI:2(c) because it totally prevents 
the services operations and/or service output through one or more or all means of delivery that are included in mode 1.  In other words, such a ban results in a "zero quota" on one or more or all means of delivery include in mode 1. 
3. Article XVI:2(a) and XVI:2(c) – Pr ohibitions Directed at Consumers
 
253. Antigua also appeals the Panel's findings that certain measures that prohibit  consumers  from 
purchasing cross-border gambling services are not ca ught by either sub-paragraph (a) or sub-
paragraph (c) of Article XVI:2.288  The Panel applied its analysis of  these provisions to find that four 
state laws directed at persons who engage in  gambling—that is, to  consumers  of gambling services 
                                                      
2871993 Scheduling Guidelines, p. 3. 
288Panel Report, paras. 6.321 and 6.348-6.349.  WT/DS285/AB/R 
 Page 85 
 
 
as opposed to suppliers  of gambling services—had not been shown to be inconsistent with the United 
States' market access commitments.289 
254. In paragraphs 149 to 155 of this Report, we expressed our view th at, with respect to the eight 
state laws reviewed by the Panel, Antigua had failed to establish a  prima facie  case of inconsistency 
with sub-paragraphs (a) and (c) of Article XVI:2.  For this reason, we reversed the Panel's findings 
that four of those state laws are inconsistent w ith Article XVI:1 and sub-pa ragraphs (a) and (c) of 
Article XVI:2.290  Having held that the Panel was not entitled to make findings on  any  of the eight 
state laws, including with respect to the four state laws directed at  consumers   rather than  suppliers   
of gambling services, we need not, in resolving this a ppeal, consider the merits of Antigua's appeal of 
the Panel's findings with respect  to restrictions on service  consumers  as opposed to service suppliers.  
C. Does the Second Paragraph of Article XVI  Exhaust the Market Access Restrictions 
that are Prohibited by the First Paragraph? 
255. The Panel found that: 
The ordinary meaning of the words, the context of Article XVI, as 
well as the object and purpose of the GATS confirm that the restrictions on market access that are covered by Article XVI are only those listed in paragraph 2 of this Article.
291   
256. Antigua conditionally appeals this finding.  Its appeal is conditional upon the Appellate 
Body's reversing the finding of the Panel, in paragr aph 7.2(b) of the Panel Report, that certain United 
States federal and state laws are contrary to Article XVI:1 and Article XVI:2 of the GATS.  More specifically, the appeal is made "in the event the Appe llate Body were to agree with the United States' 
argument that GATS Articles XVI:2(a) and (c) only ap ply to limitations that are in form specified 
exactly and expressly in terms of numerical quotas."
292  Having upheld the Panel's interpretation of 
sub-paragraphs (a) and (c ) of Article XVI:2 and di smissed this ground of the United States' appeal, it 
follows that the condition on which this aspect of Anti gua's appeal is made is not satisfied, and we  
need not consider   it further.  We thus leave the issue of  the relationship between the first and second 
paragraphs of Article XVI to another day.  
                                                      
289Panel Report, paras. 6.382-6.383 (Colorado), 6.397-6.398 (Minnesota), 6.401-6.402 (New Jersey), 
and 6.405-6.406 (New York). 
290Supra , para. 155. 
291Panel Report, para. 6.318.  See also paras. 6.298-6.299. 
292Antigua's other appellant's submission, footnote 3 to para. 3.  See also Antigua's other appellant's 
submission, para. 55. WT/DS285/AB/R 
Page 86  
 
D. Application of Article XVI to the Measures at Issue 
257. Having upheld the Panel's interpretation of Artic le XVI:2(a) and (c), we now consider its 
application of that interpretation to the measures at i ssue in this case.  In so doing, we consider, for the 
reasons already explained, only that part of the Panel's analysis relating to the three  federal  laws,  and 
not its analysis relating to state laws. 
258. The Panel's explanation of the three federal laws is set out in paragraphs  6.360 to 6.380 of the 
Panel Report.  It is, in our view, useful to set out briefly the relevant part of each statute, as well as the 
Panel's finding in respect of that statute.  The relevant part of the Wire Act states: 
Whoever being engaged in the business of betting or wagering 
knowingly uses a wire communication facility for the transmission in 
interstate or foreign commerce of bets or wagers or information 
assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or 
wagers, or for information assisting in the placing of bets or wagers 
shall be fined under this title or im prisoned not more than two years, 
or both.
293 
259. With respect to this provision, the Panel found that  "the Wire Act prohibits the use of at least 
one or potentially several means of delivery included in mode 1"294, and that, accordingly, the statute 
"constitutes a 'zero quota' for, respectively, one, several or all of those means of delivery."295  The  
Panel reasoned that the Wire Act prohibits ser vice suppliers from supplying gambling and betting 
services using remote means of delivery, as well as  service operations and service output through such 
means.  Accordingly, the Panel determined that "t he Wire Act contains a limitation 'in the form of 
numerical quotas' within the meaning of Article XV I:2(a) and a limitation 'in the form of a quota' 
within the meaning of Article XVI:2(c)."296 
260. As regards the Travel Act, the Panel quoted the following excerpt: 
(a) Whoever travels in interstate  or foreign commerce or uses 
the mail or any facility in interstate  or foreign commerce, with intent 
to – 
(1) distribute the proceeds of any unlawful activity;  or 
                                                      
293Section 1084(a) of Title 18 of the United States  Code (quoted in Panel Report, para. 6.360). 
294Panel Report, para. 6.362. 
295Ibid., para. 6.363.  
296Ibid.  WT/DS285/AB/R 
 Page 87 
 
 
(2) commit any crime of violence to further any unlawful activity;  or 
(3) otherwise promote, manage, establish, carry on, or 
facilitate the promotion, ma nagement, establishment, or 
carrying on, of any unlawful activity, 
and thereafter performs or attempts to perform -- 
(A) an act described in pa ragraph (1) or (3) shall 
be fined under this title, im prisoned not more than 5 
years, or both;  or 
(B) an act described in paragraph (2) shall be 
fined under this title, imprisoned for not more than 
20 years, or both, and if death results shall be imprisoned for any term of years or for life. 
(b) As used in this section (i) "unlawful activity" means (1) any 
business enterprise involving gambling ... in violation of the laws of 
the State in which they are co mmitted or of the United States.
297 
261. The Panel determined that "the Travel Act pr ohibits gambling activity that entails the supply 
of gambling and betting services by 'mail or any facilit y' to the extent that such supply is undertaken 
by a 'business enterprise involving gambling' that is prohibited under state law and provided that the other requirements in subparagraph (a) of the Travel Act have been met."
298  The Panel further opined 
that the Travel Act prohibits service suppliers from supplying gambling and betting services through 
the mail, (and potentially other means of deliver y), as well as services operations and service output 
through the mail (and potentially other means of deliv ery), in such a way as to amount to a "zero" 
quota on one or several means of delivery included in mode 1.299  For these reasons, the Panel found 
that "the Travel Act contains a limitation 'in th e form of numerical quotas' within the meaning of 
Article XVI:2(a) and a limitation' in the form of  a quota' within the meaning of Article XVI:2(c)."300 
262. The Panel considered the relevant part of the Illegal Gambling Business Act to be the 
following: 
(a) Whoever conducts, finances, manages, supervises, directs or 
owns all or part of an illegal ga mbling business shall be fined under 
this title or imprisoned not more than five years, or both. 
(b) As used in this section – 
                                                      
297Section 1952(a) and (b) of Title 18 of the United St ates Code (quoted in Panel Report, para. 6.366). 
298Panel Report, para. 6.370.  See also para. 6.367. 
299Ibid., paras. 6.368-6.370. 
300Ibid., para. 6.371. WT/DS285/AB/R 
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(1) 'illegal gambling business' means a gambling business which – 
(i) is a violation of the law of a State or political 
subdivision in which it is conducted; 
(ii) involves five or more persons who conduct, 
finance, manage, supervise, direct, or own all or part 
of such business;  and 
(iii) has been or remains in substantially continuous 
operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day. 
(2) 'gambling' includes but is not limited to pool-selling, 
bookmaking, maintaining slot machines, roulette wheels or dice 
tables, and conducting lotteries, polic y, bolita or numbers games, or 
selling chances therein.
301 
263. The Panel then determined that because th e IGBA "prohibits the conduct, finance, 
management, supervision, direction or ownership of all or part of a 'gambling business' that violates 
state law, it effectively prohibits  the supply of gambling and betting services through at least one and 
potentially all means of delivery included in mode  1 by such businesses";  that this prohibition 
concerned service suppliers, service operations and se rvice output;  and that, accordingly, the IGBA 
"contains a limitation 'in the form of numerical quotas ' within the meaning of Article XVI:2(a) and a 
limitation 'in the form of a quota' within the meaning of Article XVI:2(c)."302 
264. The United States' appeal of the Panel's findi ngs with respect to the consistency of its 
measures with sub-paragraphs (a) a nd (c) of Article XVI:2 rests on two pillars:  (i) that the Panel erred 
in interpreting those provisions;  and (ii) that the measures at issue do not contain any limitations that 
explicitly take the form of numerical quotas or designated numerical units.  The United States does 
not appeal the Panel's findings as to the various activities that are prohibited under these statutes.  We 
have upheld the Panel's interpreta tion of sub-paragraphs (a) and (c) of Article XVI:2 and, in 
particular, its determination that these provisions en compass measures equivalent to a zero quota.  In 
these circumstances, the fact that the Wire Act, the Travel Act and the IGBA do not explicitly use 
numbers, or the word "quota", in imposing their respective prohibitions, does not mean, as the United 
States contends, that the measures are beyond the reach of Article XVI:2(a) and (c).  As a result, there 
is no ground for disturbing the above findings made by the Panel.   
265. We have upheld the Panel's finding that the United States' Schedule to the GATS includes a 
specific commitment in respect of gambling and betting services.303  In that Schedule, the United 
                                                      
301Section 1955(a) and (b) of Title 18 of the United St ates Code (quoted in Panel Report, para. 6.374). 
302Panel Report, paras. 6.376-6.378. 
303Supra , para. 213.  WT/DS285/AB/R 
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States has inscribed "None" in the first row of the ma rket access column for subsector 10.D.  In these 
circumstances, and for the reasons given in  this section of our Report, we also  uphold   the Panel's 
ultimate finding, in paragraph 7.2(b)(i) of the Panel Report, that, by maintaining the Wire Act, the 
Travel Act, and the Illegal Gambling Business Act,  the United States acts inconsistently with its 
obligations under Article XVI:1 and Ar ticle XVI:2(a) and (c) of the GATS. 
VII. Article XIV of the GATS:  General Exceptions 
266. Finally, we turn to the Panel's analysis of the United States' defence under Article XIV of the 
GATS.  We found above that Antigua failed to make a  prima facie   case of inconsistency with 
Article XVI in relation to the eight state laws examined by the Panel.304  The Panel found that no other 
state laws had been sufficiently identified by An tigua as part of its claims in this dispute.305  W e  
therefore limit our discussion to the Panel's treatme nt of the defence asserted by the United States 
with respect to the three federal laws—the Wire  Act, the Travel Act, and the Illegal Gambling 
Business Act ("IGBA")—under Article XIV. 
267. The United States and Antigua each raises multiple allegations of error with respect to the 
Panel's analysis under Article XIV.  We begin with Antigua's claim that the Panel erred in examining 
the merits of the United States' defence, notwithst anding that the United States did not raise it until its 
second written submission to the Panel.  Next, we cons ider the participants' allegations that the Panel 
erred by taking it upon itself to construct the defence or  rebuttal for the other party.  We then turn to 
the participants' claims of error in relation to th e Panel's analysis under pa ragraphs (a) and (c) of 
Article XIV, and under the chapeau, or intr oductory paragraph, of Article XIV.   
A. Did the Panel Err in Considering the United States' Defence Under Article XIV? 
268. Antigua argues that "the Panel erred in its deci sion to consider the United States' defence in 
this proceeding at all" and thereby failed to sa tisfy its obligations under Article 11 of the DSU.306  
Antigua points out that the United States did not raise its defence under Ar ticle XIV of the GATS 
until its second written submission to the Panel, wh ich was filed on the same day as Antigua's second 
written submission.  Antigua submits that this dela yed invocation by the United States of its defence 
was a "simple litigation tactic"307, and that, because the United States did not invoke the defence at an 
                                                      
304Supra , paras. 149-155. 
305Panel Report, paras. 6.211-6.249. 
306Antigua's other appellant's submission, para. 72. 
307Ibid. WT/DS285/AB/R 
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earlier stage of the panel proceeding, Antigua was "deprived of a full and fair opportunity to respond 
to the defence."
308     
269. Article 6.2 of the DSU requires that the le gal basis for a dispute, that is, the  claims ,  be 
identified in a panel request with specificity suffi cient "to present the problem clearly," so that a  
responding party will be aware, at the time of the estab lishment of a panel, of the claims raised by the 
complaining party to which it might seek to res pond in the course of the panel proceedings.  In 
contrast, the DSU is silent about a deadline or a method by which a responding party must state the 
legal basis for its defence.309  This does not mean that a responding party may put forward its defence 
whenever and in whatever manner it chooses.  Ar ticle 3.10 of the DSU provides that "all Members 
will engage in these procedures in good faith in an effort to resolve the dispute", which implies the 
identification by each party of relevant legal and factual issues at the earliest opportunity, so as to 
provide other parties, including third parties, an opportunity to respond.   
270. At the same time, the opportunity afforded to a Member to respond to claims and defences 
made against it is also a "fundamental tenet of due process".310  A party must not merely be given an 
opportunity to respond, but that opportunity must be meaningful in terms of that party's ability to 
defend itself adequately.  A party that considers it was not afforded such an opportunity will often 
raise a due process objection before the panel.311  The Appellate Body has recognized in numerous 
cases that a Member's right to raise a claim312 or objection313, as well as a panel's exercise of 
discretion314, are circumscribed by the due process rights of other parties to a dispute.  Those due 
process rights similarly serve to limit a responding party's right to set out its defence at  any  point 
during the panel proceedings.   
                                                      
308Antigua's other appellant's submission, para. 73. 
309The issue before us, therefore, is distinct from that addressed by the Appellate Body in EC – 
Bananas III , where a responding party  challenged the panel's consideration of claims  mentioned by certain 
complaining parties in the panel request, but not supported by any arguments until the second written 
submission before the panel. (Appellate Body Report, EC – Bananas III , paras. 145-147;  see also Appellate 
Body Report, Chile – Price Band System , paras. 158-162)  Here, we address a complaining party's challenge to a 
defence  invoked by the responding party.   
310Appellate Body Report, Australia – Salmon , para. 278.  See also Appellate Body Report, Chile – 
Price Band System , para. 176. 
311Appellate Body Report, US – FSC , paras. 165-166.  See also Appellate Body Report, Thailand – H-
Beams, para. 95. 
312See, for example, Appellate Body Report, EC – Tariff Preferences , para. 113;  Appellate Body 
Report, US – Oil Country Tubular Goods Sunset Reviews , para. 161;  and Appellate Body Report, Thailand –  
H-Beams , para. 88. 
313Appellate Body Report, US – Carbon Steel , para. 123;  Appellate Body Report,  Mexico – Corn Syrup 
(Article 21.5 – US) , para. 50;  Appellate Body Report, US – FSC , para. 166;  and Appellate Body Report, US – 
1916 Act , para. 54. 
314See, for example, Appellate Body Report, US – 1916 Act , para. 150;  and Appellate Body Report, 
US – FSC (Article 21.5 – EC) , para. 243.  WT/DS285/AB/R 
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271. Due process may be of particular concern in cases where a party raises  new facts   at a late 
stage of the panel proceedings.  The Appellate Bo dy has observed that, unde r the standard working 
procedures of panels315, complaining parties should put forward their cases—with "a full presentation 
of the facts on the basis of submissi on of supporting evidence"—during the  first  stage of panel 
proceedings.316  We see no reason why this expectation w ould not apply equally to responding parties, 
which, once they have received the first written subm ission of a complaining party, are likely to be 
aware of the defences they might invoke a nd the evidence needed to support them.   
272. It follows that the principles of good faith  and due process oblige a responding party to 
articulate its defence promptly and clearly.  This w ill enable the complaining party to understand that 
a specific defence has been made, "be aware of its dimensions, and have an adequate opportunity to 
address and respond to it."317  Whether a defence has been made at a sufficiently early stage of the 
panel proceedings to provide adequate notice to  the opposing party will depend on the particular 
circumstances of a given dispute.   
273. Furthermore, as part of their duties, under Article 11 of the DSU, to "make an objective 
assessment of the matter" before them, panels must ensure that the due process rights of parties to a 
dispute are respected.318  A panel may act inconsistently with this duty if it addresses a defence that a 
responding party raised at such a late stage of the panel proceedings that the complaining party had no 
meaningful opportunity to respond to it.  To this e nd, panels are endowed with "sufficient flexibility" 
in their working procedures, by virtue of Article 12.2 of the DSU, to regulate panel proceedings and, 
in particular, to adjust their timetables to a llow for additional time to respond or for additional 
submissions where necessary. 319   
274. In the present case, the United States made no mention of Article XIV of the GATS until its 
second written submission, filed on 9 January 2004.320  Antigua did not refer to Article XIV in its 
second written submission, filed on the same da y, although Antigua had, in its first written 
                                                      
315Appendix 3 to the DSU.  We note that the Panel in this dispute operated under Working Procedures, 
drawn up in consultation with the parties, that provided for "all factual evidence [to be submitted] to the Panel no later than during the first substantive meeting, exce pt with respect to evidence necessary for purposes of 
rebuttals or answers to questions."  (Working Procedures of the Panel, Panel Report, p. A-2, para. 12) 
316Appellate Body Report, Argentina – Textiles and Apparel , para. 79.  The first stage of panel 
proceedings continues through the first substantive panel meeting, whereas the second stage continues thereafter 
through the second substantive panel meeting. 
317Appellate Body Report, Chile – Price Band System , para. 164.  See also Appellate Body Report, 
EC– Tariff Preferences , para. 113. 
318Appellate Body Report, Chile – Price Band System , paras. 174-177. 
319See Appellate Body Report, Australia – Salmon , para. 272. 
320In paragraph 87 of its second written submission to the Panel, the United States argued that the Wire 
Act, the Travel Act, and th e IGBA "meet the requirements of Article XIV,  over and above the fact that they are 
also consistent with the remainder of the GATS."  WT/DS285/AB/R 
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submission, referred to the possibility that the United States might seek to invoke Article XIV.
321  
Both parties discussed issues relating to Article XIV in their opening statements at the second 
substantive panel meeting on 26 January 2004.322 
275. At the hearing in this appeal, Antigua acknowle dged that it "had the opportunity to respond" 
to the United States' defence, and had "responded sufficiently", during its opening statement at the 
second substantive panel meeting.323  When asked whether it had info rmed the Panel of any prejudice 
resulting from the United States' allegedly late invoca tion of the defence, Antigua answered that it had 
not so informed the Panel.  Nevertheless, Antigua maintained at the hearing that it was prejudiced on 
the grounds that the late invocation by the United St ates of its defence hampered the Panel's ability to 
assess that defence, resulting in the Panel' s making the defence for the United States.324   
276. In these circumstances,  we are of the view th at, although the United States could have raised 
its defence earlier, the Panel did not err in deciding to assess whether the United States' measures are 
justified under Article XIV.  From the outset, Anti gua was apparently aware that the United States 
might argue that its measures satisfy the requirements of Article XIV.  Antigua admitted that it raised 
no objection to the timing of the United States' defe nce before the Panel.  Antigua also acknowledged 
that it did have an opportunity to respond adequately to the United States' defe nce, albeit at a late 
stage of the proceeding.  For these reasons, we consid er that the Panel did not "deprive" Antigua of a 
"full and fair opportunity to respond to the defence".325  We  find,  therefore, that the Panel did not fail 
to satisfy its obligations under Article 11 of the DSU by entering into the merits of the United States' 
defence under Article XIV. 
B. Did the Panel Err in its Treatment of th e Burden of Proof Under Article XIV? 
277. In its analysis of issues arising under Article XIV of the GATS, the Panel drew extensively on 
arguments made and evidence submitted by the parti es in connection with other issues in this case.  
This approach of the Panel to Article XIV is th e subject of appeals by both Antigua and the United 
States.  Each alleges that the Panel erred in its treatment of the burden of proof.   
                                                      
321Antigua's first written submission to the Panel, para . 202 ("It is possible that the United States may 
try during the course of this proceeding to invoke one or  more of the general exceptions of Article XIV of the 
GATS."). 
322Antigua's statement at the second substantive panel meeting, paras. 68-83;  United States' statement 
at the second substantive panel meeting, paras. 74-76. 
323Antigua's response to questioning at the oral hearing.   
324Ibid. 
325Antigua's other appellant's submission, para. 73.  WT/DS285/AB/R 
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278. Antigua argues that the Panel acted inconsistent ly with its obligations under Article 11 of the 
DSU because it "constructed the GATS Article XIV defence on behalf of the United States."326  First, 
with respect to Article XIV(a), Antigua cl aims that the United States identified only  two  interests 
relating to "public morals" or "public order", name ly:  (i) organized crime;  and (ii) underage 
gambling.  Antigua argues that the Panel, however, identified an additional three concerns on its own 
initiative:  (i) money laundering327, (ii) fraud328, and (iii) public health.329  Secondly, Antigua contends 
that the Panel erred in its analysis of the Unite d States' defence under the chapeau of Article XIV 
because the United States' arguments assessed by the Panel were not taken from the United States' 
submissions relating to Article XIV, but rather, fro m the United States' response to Antigua's national 
treatment claim under Article XVII of the GATS. 
279. In its appeal, the United States submits that it est ablished its case that the Wire Act, the Travel 
Act, and the IGBA are justified under Article XI V, but that the Panel improperly constructed a 
rebuttal under the chapeau to that provision when Antigua itself had failed to do so.  The United States alleges, in particular, that the Panel di d so "by recycling evidence and argumentation that 
Antigua had used to allege a national treatment vi olation under Article XVII as if those arguments had 
been made in the context of the Article XIV chapeau."
330  
280. We begin our analysis by referring to  the Appellate Body's view that:  
... nothing in the DSU limits the fa culty of a panel freely to use 
arguments submitted by any of the parties - or to develop its own 
legal reasoning - to support its own findings and conclusions on the matter under its consideration.
331 
281. However, a panel enjoys such discretion only with  respect to specific claims that are properly 
before it, for otherwise it would be considering a ma tter not within its jurisdiction.  Moreover, when a 
panel rules on a claim in the absen ce of evidence and supporting argumen ts, it acts inconsistently with 
its obligations under Article 11 of the DSU.332 
282. In the context of affirmative defences, then, a responding party must invoke a defence and put 
forward evidence and arguments in support of its assertion that the challenged measure satisfies the 
                                                      
326Antigua's other appellant's submission, para. 80. 
327Panel Report, paras. 6.499-6.505. 
328Ibid., paras. 6.506-6.509.  
329Ibid., paras. 6.510-6.514. 
330United States' appellant's submission, para. 188. 
331Appellate Body Report, EC – Hormones , para. 156.  See also Appellate Body Report, US – Certain 
EC Products , para. 123. 
332Appellate Body Report, Chile – Price Band System , para. 173. WT/DS285/AB/R 
Page 94  
 
requirements of the defence.  When a responding pa rty fulfils this obligation, a panel may rule on 
whether the challenged measure is  justified under the relevant defence, relying on arguments 
advanced by the parties or devel oping its own reasoning.  The same a pplies to rebuttals.  A panel may 
not take upon itself to rebut the claim (or defence)  where the responding party (or complaining party) 
itself has not done so. 
283. Turning to the issues on appeal, we begin with  the three protected interests that the Panel 
allegedly identified on its own in examining the United States' defence u nder paragraph (a) of 
Article XIV, namely, health concerns, and combati ng money laundering and fra ud.  In both its first 
and second written submissions to the Panel, the Un ited States, in responding to one of Antigua's 
claims under the GATS, identified five "concerns associated with the remote supply of gambling 
[services]."
333  These "concerns" relate to:  (1) organized crime334;  (2) money laundering335;  
(3) fraud336;  (4) risks to youth, including underage gambling337;  and (5) public health.338  When 
subsequently arguing that the Wire Act, the Travel Act, and the IGBA are justified under 
Article XIV(a), the United States explicitly refe rred back to the discussion, earlier in its second 
written submission to the Panel, of all these interests  except   for that relating to public health.339   
284. In other words, four of the five interests mentioned by the Panel were plainly discussed or 
referred to by the United States as part of its de fence under Article XIV(a).  The fifth interest—
relating to public health—was prominently identified by the United States in a previous discussion of 
the protected interests relating to the remote suppl y of gambling services and, therefore, was not an 
invention of the Panel.340  In our view, the fact that this fifth interest was not  explicitly   raised  again  
in the context of the United States' Article XIV ar guments should not have precluded the Panel from 
                                                      
333United States' second written submission to the Panel, para. 45. 
334United States' first written submission to the Panel,  paras. 10-11;  United States' second written 
submission to the Panel, paras. 46-49. 
335United States' first written submission to the Panel,  paras. 12-13;  United States' second written 
submission to the Panel, para. 50. 
336United States' first written submission to the Panel,  paras. 14-15;  United States' second written 
submission to the Panel, para. 51.  
337United States' first written submission to the Panel,  paras. 16-18;  United States' second written 
submission to the Panel, paras. 54-56. 
338United States' first written submission to the Panel,  paras. 19-21;  United States' second written 
submission to the Panel, paras. 52-53. 
339See the United States' second written submission to the Panel, para. 111 and footnote 139 thereto 
(referring to the United States' second written submission, paras. 46-51);  a nd para. 114 and footnote 143 thereto 
(referring to the United States' second  written submission, paras. 54-55). 
340United States' first written submission to the Panel, Section III.A.4 ("Supply of gambling into private 
homes, workplaces, and other environments creates additional health risks"); United States' second written 
submission to the Panel, Section III.B.1.b.iv ("Remote gambling poses a greater and broader threat to human 
health").  WT/DS285/AB/R 
 Page 95 
 
 
considering it as part of its analysis under Artic le XIV(a).  We therefore dismiss this ground of 
Antigua's appeal. 
285. We turn now to the participants' arguments rela ting to the Panel's treatment of the burden of 
proof in its analysis under the chapeau of Article XIV.  Antigua had advanced a claim before the 
Panel under Article XVII of the GATS, alleging th at the United States fails to accord to Antiguan 
services and service suppliers, treatment no less fa vourable than that accorded to like domestic 
services and service suppliers.341  Throughout the panel proceedings, the United States disputed this 
assertion, consistently arguing that United Stat es laws on gambling make no distinction between 
domestic and foreign services, or between  domestic and foreign service suppliers.342  The Panel 
exercised judicial economy with respect  to Antigua's claim under Article XVII.343  Nevertheless, in 
the course of considering whether the Wire Act, th e Travel Act, and the IGBA satisfy the conditions 
of the chapeau of Article XIV, the Panel examin ed arguments put by the parties in relation to 
Antigua's Article XVII claim.344   
286. On appeal, both participants contest the Panel's use of such arguments.  Antigua contends that 
the Panel's reliance on the United States' arguments  on Article XVII demonstrates that the Panel 
constructed a defence for the United States, whereas the United States points to the Panel's reliance on 
Antigua's arguments on Article XVII as proof that the Panel improperly assumed Antigua's responsibility to rebut the United States' defence. 
287. In arguing its Article XIV defence before the Panel, the United States asserted that its 
measures satisfy the requirements of the chapeau  of Article XIV because they do not discriminate at 
all.  In particular, the United States contended: 
                                                     
 
341Antigua's first written submission to the Panel, paras. 110-111, 117-118, 122-123, 125-128, and 188; 
Antigua's second written submission to the Panel, para. 39 ;  Antigua's statement at the first substantive panel 
meeting, paras. 88-96;  Antigua's statement at the second substantive panel meeting, paras. 61-67;  Antigua's response to Question 19 posed by the Panel, Panel Report, pp. C-45 to C-49. 
342See, for example, United States' first written submission to the Panel, para. 102 ("relevant 
restrictions on remote supply of gambling under U.S. la w, whether by Internet or other means, are based on 
objective criteria that apply regardless of the national orig in of the service or servi ce supplier");  United States' 
second written submission to the Panel, para. 61 ("As the United States has repeatedly pointed out, U.S. 
restrictions on remote supply of gambling apply regardless  of national origin");  United States' statement at the 
first substantive panel meeting, para. 52 ("The United States  again points out, as we have throughout this dispute 
that U.S. restrictions applicable to Internet gambling and other forms of gambling services that Antiguan firms seek to supply on a cross-border basis apply equally  to those remote supply activities within the United 
States.");  United States' statement at the second subs tantive panel meeting, paras. 61-68;  United States' 
responses to Questions 19 and 21-22 posed by the Panel, Panel Report, pp. C-45 to C-49 and C-50 to C-51. 
343Panel Report, para. 6.426. 
344Ibid., para. 6.584.  See also paras. 6.585-6.603. WT/DS285/AB/R 
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The restrictions in [the Wire Act, the Travel Act, and the IGBA] meet the requirements of the chapeau.  None of these measures introduces 
any discrimination on the basis of nationality.  On the contrary, as 
the United States has repeatedly observed , they apply equally 
regardless of national origin.
345  (emphasis added) 
In our view, this statement by the United States, particularly the adverb "repeatedly", reflects an 
intention to incorporate into its Article XIV defence its previous arguments relating to non-
discrimination in general, which we re made in response to Antigua's  national treatment claim.  We 
therefore consider that the Panel did not err in referring to these arguments—originally made in the 
context of Article XVII—in its Article XIV analysis. 
288. With respect to Antigua's rebuttal of the arguments, we note that, contrary to the United 
States' assertions, Antigua did contend that the thr ee federal statutes are applied in a discriminatory 
manner and therefore fail to meet the requirements of  the chapeau of Article XIV.  In its opening 
statement at the second substantive panel meeting, Antigua said: 
Even were the United States to make out a provisional defence under 
Article XIV, it is required to demonstrate that the three federal statutes in question meet the additional requirements of the "chapeau" of Article XIV.  This is  clearly   not the case. … First, the 
United States  discriminates   against Antigua services because they 
cannot be supplied through distribution methods that are available for 
the distribution of domestic services .  This is an obvious 
"unjustifiable discrimination".
346  (emphasis added;  footnote 
omitted) 
We consider that, in making this statement, An tigua effectively formulated an allegation of 
discrimination, describing it as" clear[]" and "obvious".   This must be understood as a reference to the 
arguments that it had advanced in support of its na tional treatment claim.  Accordingly, the Panel did 
not err in evaluating, as part of its analysis under the chapeau to Article XI V, the extent to which 
Antigua's arguments under Article XVII rebutted th e defence advanced by the United States.   
289. Therefore, we  find  that the Panel did not improperly assume the burden of constructing the 
defence under Article XIV(a) for the United States.  We also  find  that the Panel did not improperly 
assume the burden of making a rebuttal to the United States' defence on behalf of Antigua. 
290. Antigua also claims on appeal that the Pane l improperly constructed the defence for the 
United States under paragraph (c) of Article XIV.  Antigua argues that the United States "failed to 
                                                      
345United States' second written submission to the Panel, para. 118.  
346Antigua's statement at the second substantive panel meeting, para. 80.   WT/DS285/AB/R 
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sufficiently identify"347 the Racketeer Influenced and Corrupt  Organizations statute (the "RICO 
statute") as a law relevant to the Panel's examin ation of the challenged United States measures under 
Article XIV(c).  Antigua submits that the Panel shou ld therefore have refused to consider the RICO 
statute in its assessment of the United States' Article XIV(c) defence.  In the light of our analysis in 
the next sub-section of this Report, it is not necessar y for us to determine whether the Wire Act, the 
Travel Act, and the IGBA might also c onstitute measures falling under Article XIV(c).348  In these 
circumstances, we  need not rule   on Antigua's appeal relating to the Panel's treatment of the burden 
of proof in its analysis under paragraph (c) of Article XIV.   
C. The Panel's Substantive Analysis Under Article XIV 
291. Article XIV of the GATS sets out the gene ral exceptions from obligations under that 
Agreement in the same manner as does Article XX of the GATT 1994.  Both of these provisions 
affirm the right of Members  to pursue objectives id entified in the paragraphs of these provisions even 
if, in doing so, Members act inconsistently with obligations set out in other provisions of the 
respective agreements, provided that all of the c onditions set out therein are satisfied.  Similar 
language is used in both provisions349, notably the term "necessary"350 and the requirements set out in 
their respective chapeaux.  Accordingly, like the Panel, we find previous decisions under Article XX 
of the GATT 1994 relevant for our an alysis under Article XIV of the GATS.351 
                                                      
347Antigua's other appellant's submission, para. 121. 
348Infra , para. 337. 
349Notwithstanding the general similarity in language between the two provisions, we note that 
Article XIV(a) of the GATS expressly enables Members to  adopt measures "necessary to protect public morals 
or to maintain public order ", whereas the corresponding exception in the GATT 1994, Article XX(a), speaks of 
measures "necessary to protect public morals". (emphasis added) 
350See, for example, paragraphs (a), (b), and (d) of Article XX of the GATT 1994: 
(a) necessary to protect public morals; 
(b) necessary to protect human, animal or plant life or health; 
… 
(d) necessary to secure compliance wi th laws or regulations which are 
not inconsistent with the provisions of this Agreement, including 
those relating to customs enfo rcement, the enforcement of 
monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and the 
prevention of deceptive practices. 
351In this respect, we observe that this case is not only the first where the Appellate Body is called upon 
to address the general exceptions provision of the GATS, but also the first under any of the covered agreements 
where the Appellate Body is requested to ad dress exceptions relating to "public morals". WT/DS285/AB/R 
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292. Article XIV of the GATS, like Article XX of the GATT 1994, contemplates a "two-tier 
analysis" of a measure that a Member seeks to justify under that provision.
352  A panel should first 
determine whether the challenged measure falls w ithin the scope of one of the paragraphs of 
Article XIV.  This requires that the challenged measure  address the particular interest specified in that 
paragraph and that there be a sufficient nexus betw een the measure and the interest protected.  The 
required nexus—or "degree of connection"—between th e measure and the interest is specified in the 
language of the paragraphs themse lves, through the use of terms su ch as "relating to" and "necessary 
to".353  Where the challenged measure has been f ound to fall within one of the paragraphs of 
Article XIV, a panel should then consider whethe r that measure satisfies the requirements of the 
chapeau of Article XIV. 
1. Justification of the Measures Under Paragraph (a) of Article XIV    
293. Paragraph (a) of Article XIV covers:  
... measures ... necessary to protect public morals or to maintain 
public order. (footnote omitted) 
294. In the first step of its analysis under this pr ovision, the Panel examined whether the measures 
at issue—the Wire Act, the Travel Act, and the IG BA—are "designed" to protect public morals and to 
maintain public order.354  As a second step, the Panel dete rmined whether these measures are 
"necessary" to protect public morals or to ma intain public order, within the meaning of 
Article XIV(a).355  The Panel found that: 
... the United States has not been able to provisionally justify, under 
Article XIV(a) of the GATS, that the Wire Act, the Travel Act (when read together with the relevant st ate laws) and the Illegal Gambling 
Business Act (when read together with the relevant state laws) are necessary to protect public morals and/or public order within the 
meaning of Article XIV(a).  We, nonetheless, acknowledge that such 
laws are designed so as to protect public morals or maintain public order.
356  (footnotes omitted) 
295. Our review of this conclusion proceeds in two pa rts.  We address first Antigua's challenge to 
the Panel's finding that the three federal statutes are "measures that are designed to 'protect public 
                                                      
352Appellate Body Report, US – Shrimp , para. 147.  See also Appellate Body Report, US – Gasoline , 
p. 22, DSR 1996:I, 3, at 20. 
353Appellate Body Report, US – Gasoline , pp. 17-18, DSR 1996:I, 3, at 16. 
354Panel Report, paras. 6.479-6.487. 
355Ibid., paras. 6.488-6.534. 
356Ibid., para. 6.535.   WT/DS285/AB/R 
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morals' and/or 'to maintain public order' in the United States within the m eaning of Article XIV(a)."357  
We then address the participants' respective challenges to the Panel' s finding that the three federal 
statutes are not "necessary" to protect public morals and to maintain public order. 
(a) "Measures … to protect public morals or to maintain public order"   
296. In its analysis under Article XIV(a), the Panel found that "the term 'public morals' denotes 
standards of right and wrong conduct maintained by or on behalf of a community or nation."358  The 
Panel further found that the definition of the term "o rder", read in conjunction with footnote 5 of the 
GATS, "suggests that 'public order' refers to the prese rvation of the fundamental interests of a society, 
as reflected in public policy and law."359  The Panel then referred to Congressional reports and 
testimony establishing that "the government of the Un ited States consider[s] [that the Wire Act, the 
Travel Act, and the IGBA] were adopted to a ddress concerns such as those pertaining to money 
laundering, organized crime, fraud, under age gambling and pathological gambling."360  On this basis, 
the Panel found that the three federal statutes are "measures that are designed to 'protect public 
morals' and/or 'to maintain public order' within the meaning of Article XIV(a)."361 
297. Antigua contests this finding on a rather lim ited ground, namely that the Panel failed to 
determine whether the concerns identified by th e United States satisfy the standard set out in 
footnote 5 to Article XIV(a) of the GATS, which reads:   
[t]he public order exception may be invoked only where a genuine 
and sufficiently serious threat is posed to one of the fundamental 
interests of society.  
298. We see no basis to conclude that the Panel fa iled to assess whether the standard set out in 
footnote 5 had been satisfied.  As Antigua acknowledges362, the Panel expressly referred to footnote 5 
in a way that demonstrated that it understood the requi rement therein to be part of the meaning given 
to the term "public order".363  Although " no further mention "364 was made in the Panel Report of 
footnote 5 or of its text, this alone does not est ablish that the Panel failed to assess whether the 
interests served by the three federal statutes satis fy the footnote's criteria.  Having defined "public 
                                                      
357Panel Report, para. 6.487. 
358Ibid., para. 6.465. 
359Ibid., para. 6.467. 
360Ibid., para. 6.486. 
361Ibid., para. 6.487. 
362Antigua's other appellant's submission, para. 89. 
363Panel Report, para. 6.467. 
364Antigua's other appellant's submission, para. 90. (original emphasis) WT/DS285/AB/R 
Page 100  
 
order" to include the standard in footnote 5, and th en applied that definition to the facts before it to 
conclude that the measures "are designed to 'pro tect public morals' and/or 'to maintain public 
order'"
365, the Panel was not required, in addition, to ma ke a separate, explicit determination that the 
standard of footnote 5 had been met.     
299. We therefore  uphold   the Panel's finding, in paragraph 6. 487 of the Panel Report, that "the 
concerns which the Wire Act, the Travel Act a nd the Illegal Gambling Business Act seek to address 
fall within the scope of 'public morals' and/ or 'public order' under Article XIV(a)."  
(b) The Requirement that a Measure be "Necessary" Under 
Article XIV(a) 
300. In the second part of its analysis under Article XIV(a), the Panel considered whether the Wire 
Act, the Travel Act, and the IGBA are "necessary" within the meaning of that provision.  The Panel 
found that the United States had not demonstrated the "necessity" of those measures.366 
301. This finding rested on the Panel's determinations  that:  (i) "the interests and values protected 
by [the Wire Act, the Travel Act, and the IGBA] ser ve very important societal interests that can be  
characterized as 'vital and important in the highest degree'"367;  (ii) the Wire Act, the Travel Act, and 
the IGBA "must contribute, at least to some ex tent", to addressing the United States' concerns 
"pertaining to money laundering, organized crim e, fraud, underage gambling and pathological 
gambling"368;  (iii) the measures in question "have a significant restrictive trade impact"369;  and 
(iv) "[i]n rejecting Antigua's inv itation to engage in bilateral or  multilateral consultations and/or 
negotiations, the United States failed to pursue in goo d faith a course of action that could have been 
used by it to explore the possibility of finding a reasonably available WTO-consistent alternative."370 
                                                      
365Panel Report, para. 6.487. 
366Ibid. 
367Ibid., para. 6.492:   
On the basis of the foregoing, it is clear  to us that the interests and values 
protected by the Wire Act, the Travel Act (when read together with the 
relevant state laws) and the Illegal Gambling Business Act (when read together with the relevant state laws) serve very important societal interests 
that can be characterized as "vital and important in the highest degree" in a 
similar way to the characterization of the protection of human life and health 
against a life-threatening health risk by the Appellate Body in EC – 
Asbestos . (quoting Appellate Body Report, EC – Asbestos , para. 172) 
368Ibid., para. 6.494. 
369Ibid., para. 6.495. 
370Ibid., para. 6.531.  WT/DS285/AB/R 
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302. Each of the participants appeals different asp ects of the analysis undertaken by the Panel in 
determining whether the "necessity" requirement in Article XIV(a) was satisfied.  According to 
Antigua, the Panel failed to establish a sufficient "n exus" between gambling and the concerns raised 
by the United States.371  In addition, Antigua claims that th e Panel erroneously limited its discussion 
of "reasonably available alternatives".  In its app eal, the United States argues that the Panel departed 
from the way in which "reasonably available alternat ive" measures have been examined in previous 
disputes and erroneously imposed "a procedural requirement on the United States to consult or 
negotiate with Antigua before the United States ma y take measures to protect public morals [or] 
protect public order".372     
303. We begin our analysis of this issue by ex amining the legal standard of "necessity" in 
Article XIV(a) of the GATS.  We then turn to  the participants' appeals regarding the Panel's 
interpretation and applicati on of this requirement. 
(i) Determining "necessity" under Article XIV(a) 
304. We note, at the outset, that the standard of "necessity" provided for in the general exceptions 
provision is an  objective   standard.  To be sure, a Member's characterization of a measure's objectives 
and of the effectiveness of its regulatory approach —as evidenced, for example, by texts of statutes, 
legislative history, and pronouncem ents of government agencies or officials—will be relevant in 
determining whether the measure is, objectively,  "necessary".  A panel is not bound by these 
characterizations373, however, and may also find  guidance in the structure and operation of the 
measure and in contrary evidence proffered by the co mplaining party.  In any event, a panel must, on 
the basis of the evidence in th e record, independently and objectively assess the "necessity" of the 
measure before it. 
305. In Korea – Various Measures on Beef , the Appellate Body stated, in the context of 
Article XX(d) of the GATT 1994, that whether a measure is "necessary" should be determined 
through "a process of weighing and balancing a series of factors".374  The Appellate Body 
characterized this process as one: 
                                                      
371Antigua's other appellant's submission, para. 97. 
372United States' appellant's submission, para. 139. 
373Appellate Body Report, India – Patents (US) , para. 66.  
374Appellate Body Report, Korea – Various Measures on Beef , para. 164. WT/DS285/AB/R 
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... comprehended in the determinati on of whether a WTO-consistent 
alternative measure which the Me mber concerned could "reasonably 
be expected to employ" is available, or whether a less WTO-inconsistent measure is  "reasonably available".
375 
306. The process begins with an assessment of the "rel ative importance" of the interests or values 
furthered by the challenged measure.376  Having ascertained the importance of the particular interests 
at stake, a panel should then turn to the other f actors that are to be "weighed and balanced".  The 
Appellate Body has pointed to two factors that, in most cases, will be relevant to a panel's 
determination of the "necessity" of a measure, a lthough not necessarily exhaustive of factors that 
might be considered.377  One factor is the contribution of the measure to the realization of the ends 
pursued by it;  the other factor is the restrictive impact of the measure on international commerce.   
307. A comparison between the challenged measur e and possible alternatives should then be 
undertaken, and the results of such comparison should be considered in the light of the importance of 
the interests at issue.  It is on the basis of this  "weighing and balancing" a nd comparison of measures, 
taking into account the interests or values at stak e, that a panel determines whether a measure is 
"necessary" or, alternatively, whether another, WT O-consistent measure is "reasonably available".378   
308. The requirement, under Article XIV(a), that a measu re be "necessary"—that is, that there be 
no "reasonably available", WTO-consistent altern ative—reflects the shared understanding of 
Members that substantive GATS obligations should not be deviated from lightly.  An alternative 
measure may be found not to be "r easonably available", however, where it is merely theoretical in 
nature, for instance, where the responding Member is not capable of taking it, or where the measure 
imposes an undue burden on that Member, such as prohibitive costs or substantial technical 
difficulties.  Moreover, a "reasonably available" a lternative measure must be a measure that would 
preserve for the responding Member its right to achieve  its desired level of protection with respect to 
the objective pursued under paragraph (a) of Article XIV.379 
309. It is well-established that a responding party i nvoking an affirmative defence bears the burden 
of demonstrating that its measure, found to be WTO-inconsistent, satisfies the requirements of the 
                                                      
375Appellate Body Report, Korea – Various Measures on Beef , para. 166. 
376Ibid., para. 162.  See also Appellate Body Report, EC – Asbestos , para. 172. 
377Appellate Body Report, Korea – Various Measures on Beef , para. 164. 
378Ibid., para. 166. 
379Appellate Body Report, EC – Asbestos , paras. 172-174.  See also Appellate Body Report, Korea – 
Various Measures on Beef , para. 180.  WT/DS285/AB/R 
 Page 103 
 
 
invoked defence.380  In the context of Article XIV(a), this  means that the responding party must show 
that its measure is "necessary" to achieve objectives re lating to public morals or  public order.  In our 
view, however, it is not the responding party's burden to show, in the first instance, that there are no 
reasonably available alternatives to achieve its objec tives.  In particular, a responding party need not 
identify the universe of less trade -restrictive alternative measures a nd then show that none of those 
measures achieves the desired objective.  The WTO agreements do not contemplate such an 
impracticable and, indeed, often impossible burden.   
310. Rather, it is for a responding party to make a  prima facie   case that its measure is "necessary" 
by putting forward evidence and arguments that enab le a panel to assess the challenged measure in the 
light of the relevant factors to be "weighed and balanced" in a given case.  The responding party may, 
in so doing, point out why alternative measure s would not achieve the same objectives as the 
challenged measure, but it is under no obligation to do so in order to establish, in the first instance, 
that its measure is "necessary".  If the pane l concludes that the respondent has made a  prima facie   
case that the challenged measure is "necessary"—that  is, "significantly closer to the pole of 
'indispensable' than to the opposite pole of simply 'making a contribution to'"381—then a panel should 
find that challenged measure "necessary" within th e terms of Article XIV(a) of the GATS.   
311. If, however, the complaining party raises a WTO- consistent alternative measure that, in its 
view, the responding party should have taken, the responding party will be required to demonstrate 
why its challenged measure nevertheless remains "necess ary" in the light of that alternative or, in 
other words, why the proposed alternative is not, in  fact, "reasonably available".  If a responding party 
demonstrates that the alternative is not "reasonably av ailable", in the light of the interests or values 
being pursued and the party's desired level of prot ection, it follows that the challenged measure must 
be "necessary" within the terms of Article XIV(a) of the GATS. 
(ii) Did the Panel err in its analysis of the "necessity" of the 
measures at issue?   
312. In considering whether the United States' measu res are "necessary" under Article XIV(a) of 
the GATS, the Panel began by considering the factors set out by the Appellate Body in Korea – 
Various Measures on Beef  as they apply to the Wire Act, the Travel Act, and the IGBA.  Antigua 
claims that the Panel erred in concluding, in the c ourse of its analysis of these factors, that the three 
federal statutes contribute to protecting the interests raised by the United States.     
                                                      
380Appellate Body Report, US – Gasoline , pp. 22-23, DSR 1996:I, 3, at 21;  Appellate Body Report, 
US – Wool Shirts and Blouses, pp. 15-16, DSR 1997:I, 323, at 337;  Appellate Body Report, US – FSC  
(Article 21.5 – EC) , para. 133. 
381Appellate Body Report, Korea – Various Measures on Beef , para. 161. WT/DS285/AB/R 
Page 104  
 
313. The Panel set out, in some detail, how the United States' evidence established a specific 
connection between the remote supply of gambling se rvices and each of the interests identified by the 
United States
382, except for organized crime.383  In particular, the Panel f ound such a link in relation to 
money laundering384, fraud385, compulsive gambling386, and underage gambling.387  Considering that 
the three federal statutes embody an outright prohi bition on the remote supply of gambling services388, 
we see no error in the Panel's approach, nor in its fi nding, in paragraph 6.494 of  the Panel Report, that 
the Wire Act, the Travel Act, and the IGBA "must contribute" to addressing those concerns. 389 
314. In addition, the United States and Antigua each  appeals different aspects of the Panel's 
selection of alternative measures to compare with th e Wire Act, the Travel Act, and the IGBA.  The 
United States argues that the Panel erred in examini ng the one alternative measure that it did consider, 
and Antigua contends that the Panel erred in fa iling to consider additiona l alternative measures. 
315. In its "necessity" analysis under Article XIV(a) , the Panel appeared to understand that, in 
order for a measure to be accepted as "necessary" under Article XIV(a), the responding Member must 
have first " explored and exhausted " all reasonably available WTO-compatible alternatives before 
adopting its WTO-inconsistent measure.390  This understanding led the Pane l to conclude that, in this 
case, the United States had "an obligation to cons ult with Antigua before and while imposing its 
prohibition on the cross-border supply of gambling and betting services".391  Because the Panel found 
that the United States had not engaged in such cons ultations with Antigua, the Panel also found that 
                                                      
382Panel Report, paras. 6.498-6.520. 
383The Panel found that the United States had not submitted "concrete evidence" showing the  
particular  vulnerability of the remote supply of gambling services to involvement by organized crime.  
Therefore, the Panel concluded, the United States ha d not demonstrated why the means used to regulate non-
remote supply of gambling services could not sufficiently guard against the risk of organized crime. (Panel Report, para. 6.520)   
384Panel Report, paras. 6.500-6.504. 
385Ibid., paras. 6.507 and 6.508. 
386Ibid., paras. 6.511-6.513. 
387Ibid., paras. 6.516-6.518. 
388Supra , paras. 258-263. 
389The Appellate Body employed similar reasoning with respect to a prohibition on the import of 
products containing asbestos.  See Appellate Body Report, EC – Asbestos , para. 168: 
By prohibiting all forms of amphibole asbestos, and by severely restricting 
the use of chrysotile asbestos, the measure at issue is clearly designed and 
apt to achieve that level of health protection. 
390Panel Report, para. 6.528. (emphasis added)  See also paras. 6.496, 6.522, and 6.534. 
391Ibid., para. 6.531.  See also para. 6.534.  WT/DS285/AB/R 
 Page 105 
 
 
the United States had not established that its measur es are "necessary" and, therefore, provisionally 
justified under Article XIV(a).392 
316. In its appeal of this finding, the United States argues that "[t]he Panel relied on the 'necessity' 
test in Article XIV as the basis for imposing a procedural requirement on the United States to consult or negotiate with Antigua before the United States may take measures to protect public morals [or] 
protect public order".
393  The United States submits that the requirement in Article XIV(a) that a 
measure be "necessary" indicates that "necessity is a property of the measure itself" and, as such, 
"necessity" cannot be determined by reference to the efforts undertaken by a Member to negotiate an 
alternative measure.394  The United States further argues that in previous disputes, the availability of 
alternative measures that were "merely theoreti cal" did not preclude the challenged measures from 
being deemed to be "necessary".395  Similarly, the United States ar gues, the fact that measures might 
theoretically be available after engaging in c onsultations with Antigua does not preclude the 
"necessity" of the three federal statutes. 
317. In our view, the Panel's "necessity" analysis  was flawed because it did not focus on an 
alternative measure that was reasonably available to  the United States to achieve the stated objectives 
regarding the protection of public morals or the maintenance of public order.  Engaging in 
consultations with Antigua, with a view to arriving  at a negotiated settlement that achieves the same 
objectives as the challenged United States' measures, w as not an appropriate alternative for the Panel 
to consider because consultations are by definition a process, the results of which are uncertain and 
therefore not capable of comparison with the measures at issue in this case.    
318. We note, in addition, that the Panel based its requirement of consulta tions, in part, on "the 
existence of [a] specific market access commit ment [in the United States' GATS Schedule] with 
respect to cross-border trade of gambling and betting services".396  We do not see how the existence of 
a specific commitment in a Member's Schedule aff ects the "necessity" of a measure in terms of the 
protection of public morals or the maintenance of public order.  For this reason as well, the Panel 
erred in relying on consultations as an alternativ e measure reasonably available to the United States. 
319. We turn now to Antigua's allegation that th e Panel improperly limite d its examination of 
possible alternative measures against which to compar e the Wire Act, the Travel Act, and the IGBA.  
Antigua claims that the Panel "erred in limiting" its search for alternatives to the universe of  existing   
                                                      
392Panel Report, paras. 6.533-6.535. 
393United States' appellant's submission, para. 139. 
394Ibid., para. 142. 
395Ibid., para. 152. 
396Panel Report, para. 6.531. WT/DS285/AB/R 
Page 106  
 
United States regulatory measures.
397  Antigua also alleges that the Panel erred by examining only 
those measures that had been explicitly identified by Antigua even though "Antigua was never given 
the opportunity to properly rebut the Article XIV defence."398   
320. We observe, first, that the Panel did not state that it was limiting its search for alternatives in 
the manner alleged by Antigua.  Secondly, although the Panel  began   its analysis of alternative 
measures by considering whether the United States already employs measures less restrictive than a 
prohibition to achieve the same objectives as the three federal statutes399, its inquiry did not end there.  
The Panel obviously did consider alternatives  not  currently in place in the United States, as 
evidenced by its (ultimately erroneous) emphasis on the United States' alleged failure to pursue 
consultations with Antigua.400  Finally, we do not see why the Panel should have been expected to 
continue its analysis into additional alternative m easures, which Antigua itself failed to identify.  As 
we said above401, it is not for the responding party to identify the universe of alternative measures 
against which its own measure should be compared.  It is  only if such an alternative is raised that this 
comparison is required. 402  We therefore dismiss this aspect of Antigua's appeal.      
321. In our analysis above, we found that the Panel erred in assessing the necessity of the three 
United States statutes against the possibility of cons ultations with Antigua b ecause such consultations, 
in our view, cannot qualify as a reasonably availabl e alternative measure with which a challenged 
measure should be compared.403  For this reason, we  reverse   the Panel's finding, in paragraph 6.535 
of the Panel Report, that, because the United States did not enter into consultations with Antigua:  
                                                      
397Antigua's other appellant's submission, para. 103. 
398Ibid., para. 104. 
399See Panel Report, paras. 6.497-6.498.  This type of approach was expressly encouraged by the 
Appellate Body in Korea – Various Measures on Beef , para. 172:   
The application by a Member of  WTO- compatible   enforcement measures 
to the same kind of illegal behaviour – the passing off of one product for 
another – for like or at least similar products, provides a suggestive 
indication that an alternative measure which could "reasonably be expected" 
to be employed may well be available.  The application of such measures for 
the control of the same illegal behaviour for like, or at least similar, products 
raises doubts with respect to the objective necessity  of a different, much 
stricter, and WTO-inconsistent enfor cement measure. (original emphasis) 
400Supra , paras. 315-318. 
401Supra , para. 309. 
402Supra , paras. 310-311. 
403Supra , para. 317.  WT/DS285/AB/R 
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... the United States has not been able to provisionally justify, under Article XIV(a) of the GATS, that the Wire Act, the Travel Act (when read together with the relevant st ate laws) and the Illegal Gambling 
Business Act (when read together with the relevant state laws) are necessary to protect public morals and/or public order within the 
meaning of Article XIV(a).    
322. Having reversed this finding, we must cons ider whether, as the United States contends
404, the 
Wire Act, the Travel Act, and the IGBA are pr operly characterized as "necessary" to achieve the 
objectives identified by the United States and accepted by  the Panel.  The Panel's analysis, as well as 
the factual findings contained therein, are useful for our assessment of whether these measures satisfy 
the requirements of paragraph (a) of Article XIV. 
323. As we stated above, a responding party must make a  prima facie   case that its challenged 
measure is "necessary".  A Panel determines whether this case is made through the identification, and 
weighing and balancing, of relevant factors, such as those in  Korea – Various Measures on Beef ,  
with respect to the measure challenged.  In this rega rd, we note that the Panel:  (i) found that the three 
federal statutes protect "very important societal interests"405;  (ii) observed that "strict controls may be 
needed to protect [such] interests"406;  and (iii) found that the three federal statutes contribute to the 
realization of the ends that they pursue.407  Although the Panel recognized the "significant restrictive 
trade impact"408 of the three federal statutes, it expressly tempered this recognition with a detailed 
explanation of certain characteristics of, and concer ns specific to, the remote supply of gambling and 
betting services.  These included:  (i) "the volume, speed and international reach of remote gambling 
transactions"409;  (ii) the "virtual anonymity of such transactions"410;  (iii) "low barriers to entry in the 
context of the remote supply of gambling and betting services"411;  and the (iv) "isolated and 
anonymous environment in which such gambling takes place".412  Thus, this analysis reveals that the 
Panel did not place much weight, in the circumstances of this case, on the restrictive trade impact of 
the three federal statutes.  On the contrary, the Panel appears to have accepted virtually all of the 
                                                      
404United States' appellant's submission, para. 176. 
405Panel Report, paras. 6.492 and 6.533. 
406Ibid., para. 6.493. 
407Ibid., para. 6.494. 
408Ibid., para para. 6.495. 
409Ibid., para. 6.505. 
410Ibid. 
411Ibid., para. 6.507. 
412Ibid., para. 6.514. WT/DS285/AB/R 
Page 108  
 
elements upon which the United States based its assertion that the three federal statutes are 
"indispensable".
413 
324. The Panel further, and in our view, tellingly, stated that  
... the United States has legitimate spec ific concerns with respect to 
money laundering, fraud, health and underage gambling that are 
specific to the remote supply of gambling and betting services, which 
suggests that the measures in qu estion are "necessary" within the 
meaning of Article XIV(a).  414  (emphasis added) 
325. From all of the above, and in particular from the summary of its analysis made in 
paragraphs 6.533 and 6.534 of the Panel Report, we understand the Panel to  have acknowledged that, 
 but for   the United States' alleged refusal to accept An tigua's invitation to negotiate, the Panel would 
have found that the United States had made its  prima facie   case that the Wire Act, the Travel Act, 
and the IGBA are "necessary", within the meaning of  Article XIV(a).  We thus agree with the United 
States that the "sole basis" for the Panel's conclusi on to the contrary was its finding relating to the 
requirement of consultations with Antigua.415   
326. Turning to the Panel's analysis of alternative measures, we observe that the Panel dismissed, 
as irrelevant to its analysis, measures that did not ta ke account of the specific concerns associated with 
 remote   gambling.416  We found above that the Panel erred in finding that consultations with Antigua 
constitutes a measure reasonably available to the United States.417  Antigua raised no other measure 
that, in the view of the Panel, could be consider ed an alternative to the prohibitions on remote 
gambling contained in the Wire Act, the Travel Ac t, and the IGBA.  In our opinion, therefore, the 
record before us reveals no reasonably availabl e alternative measure proposed by Antigua or 
examined by the Panel that would establish that th e three federal statutes are not "necessary" within 
the meaning of Article XIV(a).  Because the United States made its  prima facie   case of "necessity", 
and Antigua failed to identify a reasonably availabl e alternative measure, we conclude that the United 
States demonstrated that its statutes are "necessary" , and therefore justified, under paragraph (a) of 
Article XIV. 
                                                      
413Panel Report, para. 6.534. 
414Ibid., para. 6.533. 
415United States' appellant's submission, para. 137. 
416Panel Report, paras. 6.497-6.498. 
417Supra , para. 317.  WT/DS285/AB/R 
 Page 109 
 
 
327. For all these reasons, we  find  that the Wire Act, the Travel Act, and the IGBA are "measures 
... necessary to protect public morals or to maintain public order", within the meaning of paragraph (a) 
of Article XIV of the GATS.418   
(c) Allegations of Error Under Article 11 of the DSU   
328. Antigua and the United States also challenge several aspects of  the Panel's analysis under 
Article XIV(a) as inconsistent with a panel's duty,  pursuant to Article 11 of the DSU, to "make an 
objective assessment of the matter before it, includ ing an objective assessment of the facts of the 
case".   
329. In several instances, Antigua claims that the Panel failed to comply with Article 11 of the 
DSU because the Panel relied solely or primar ily on evidence submitted by the United States, 
including statements of United States officials and the United States Congress, without taking into consideration contrary evidence submitted by Antigua.
419  Antigua's arguments in this respect rely on 
the fact that the Panel did not discuss or menti on certain pieces of evidence submitted by Antigua.  
Although Antigua alleges an " unobjective  assessment of Antiguan evidence"420, it provides no 
examples or arguments in support of this assertion to establish that the Panel somehow exceeded its 
discretion.   
330. As the Appellate Body has pointed out on several occasions:   
Determination of the credibility and we ight properly to be ascribed to 
(that is, the appreciation of) a given piece of evidence is part and 
parcel of the fact finding process and is, in principle, left to the discretion of a panel as the trier of facts.
 421 
As a result, unless a panel "has exceeded the bounds of its discretion ... in its appreciation of the 
evidence"422, the Appellate Body will not interfere with the findings of the panel.423  
331. Antigua's arguments on this issue appear to us to amount to mere disagreement with the 
Panel's exercise of discretion in selecting which eviden ce to rely on when making its findings.  This is 
                                                      
418We address in the next sub-section of this Report the appeals raised by Antigua and the United States 
under Article 11 of the DSU, with re spect to the Panel's analysis under Ar ticle XIV(a) of the GATS, and find 
them to be either without merit or not necessary to rule on in order to resolve this dispute. 
419Antigua's other appellant's submission, paras. 107-110 and 113-118. 
420Ibid., para. 113. (emphasis added) 
421Appellate Body Report, EC – Hormones , para. 132.   
422Appellate Body Report, US – Wheat Gluten , para. 151.  See also Appellate Body Report, Canada – 
Wheat Exports and Grain Imports , para. 181. 
423Appellate Body Report, Japan – Apples , para. 221 (referring in footnote to Appellate Body Report, 
EC – Bed Linen (Article 21.5 – India) , para. 170, and Appellate Body Report, US – Carbon Steel , para. 142). WT/DS285/AB/R 
Page 110  
 
not a basis on which we may conclude, on appeal, that the Panel failed to make an "objective 
assessment of the facts of the case".   
332. Antigua additionally contends that the Panel act ed inconsistently with Article 11 of the DSU 
because it undertook no assessment of factual evidence relating specifically to  Antiguan   gambling 
and betting services when evaluating whether the Wi re Act, the Travel Act, and the IGBA are 
"necessary".  To determine whether the statutes at  issue are "necessary" under Article XIV(a), the 
Panel was called upon to assess the relationship be tween, on the one hand, the United States' 
restrictions on the remote supply of gambling, and, on the other hand, the "public moral"/"public 
order" interests identified by the United States as the reasons for the restrictions contained in the Wire 
Act, the Travel Act, and the IGBA.  The United States did not explicitly identify either the  source of 
supply  or the  foreign nature  of the supply of gambling and betting services as a relevant concern.  In 
other words, the evidence put before  the Panel by the United States s uggests that the nexus is with the 
remote supply of gambling services, regardless of its source or the national origin of the suppliers.  
Moreover, the statutes at issue make no distinction on their face as to gambling services from different 
origins;  the Panel found simply that the statutes  prohibit the remote supply of gambling and betting 
services.
424  As a result, there was no need for the Pane l to have analyzed evidence relating to the 
supply of gambling services specifically  from Antigua ,  and we see no error in the Panel's decision 
not to make an assessment of the Antiguan industry.     
333. The United States appeals, under Article 11 of th e DSU, the Panel's factual finding that the 
United States rejected Antigua's invitation to enga ge in consultations to explore means by which 
Antiguan gambling service suppliers might provide th eir services without contributing to the concerns 
identified by the United States.425  We have already found that th e Panel erred in concluding that 
consultations were required in order for the three federal statutes to be  considered "necessary" under 
Article XIV(a).  Therefore, in resolving this dispute, we  need not rule   on this claim on appeal. 
334. Therefore, we  find  that the Panel did not fail to "make an objective assessment of the facts of 
the case", as required by Article 11 of the DSU, with respect to its analysis under Article XIV(a) of 
the GATS. 
                                                      
424Panel Report, paras. 6.361-6.362, 6.367, and 6.375.  See also supra , para. 258-263. 
425United States' appellant's submission, paras. 171-175.  WT/DS285/AB/R 
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2. Justification of the Measures Under Paragraph (c) of Article XIV  
335. The Panel found, in paragraph 6. 565 of the Panel Report, that: 
... the United States has not been able to provisionally justify that the 
Wire Act, the Travel Act (when read  together with the relevant state 
laws) and the Illegal Gambling Business Act (when read together with the relevant state laws) are necessary within the meaning of Article XIV(c) of GATS to secure compliance with the RICO statute 
… . (footnotes omitted) 
336. The United States appeals this finding on the same grounds that it appeals the Panel's finding 
that the United States had not established that the Wire  Act, the Travel Act, and the IGBA are within  
the scope of Article XIV(a).  The Panel's finding under Article XIV(c) rests on the same basis as its 
finding under Article XIV(a), namely that the measures are not "necessary" because, in failing to 
engage in consultations with An tigua, the United States failed to e xplore and exhaust all reasonably 
available alternative measures.  Given that we ha ve reversed this finding under Article XIV(a), we 
also  reverse   the Panel's finding in paragraph 6. 565 of the Panel Report on the same ground. 
337. The United States requests us to complete the anal ysis and find that the Wire Act, the Travel 
Act, and the IGBA are "necessary", within the meani ng of Article XIV(c), to secure compliance with 
the RICO statute.  We found in the previous section of  this Report that the Wire Act, the Travel Act, 
and the IGBA fall under para graph (a) of Article XIV.  As a result, it is  not necessary for us to 
determine   whether these measures  are also justif ied under paragraph (c) of Article XIV. 
3. The Chapeau of Article XIV
 
338. Notwithstanding its finding that the measures at issue are  not  provisionally justified, the 
Panel examined whether those measures satisfy the re quirements of the chapeau of Article XIV "so as 
to assist the parties in resolving the underlying dispute in this case."426  This examination is the subject 
of appeals by both participants.  Unlike the Panel, we have found the Wire Act, the Travel Act, and 
the IGBA to fall within the scope of Article XIV( a).  Therefore, we must now review the Panel's 
examination under the chapeau. 
339. The chapeau of Article XIV provides: 
                                                      
426Panel Report, para. 6.566. WT/DS285/AB/R 
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Subject to the requirement that such measures are not applied in a manner which would constitute a mean s of arbitrary or unjustifiable 
discrimination between countries where like conditions prevail, or a disguised restriction on trade in services, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any 
Member of measures [of the type specified in the subsequent 
paragraphs of Article XIV].... 
The focus of the chapeau, by its express terms, is on the  application  of a measure already found by 
the Panel to be inconsistent with one of the ob ligations under the GATS but falling within one of the 
paragraphs of Article XIV.
427  By requiring that the measure be  applied  in a manner that does not to 
constitute "arbitrary" or "unjustifiable" discriminati on, or a "disguised restriction on trade in services", 
the chapeau serves to ensure that Members' right s to avail themselves of exceptions are exercised 
reasonably, so as not to frustrate the rights accorded  other Members by the substantive rules of the 
GATS.428 
340. The Panel found that: 
... the United States has not demonstrated that it does not apply its 
prohibition on the remote supply of wagering services for horse 
racing in a manner that does not constitute "arbitrary and 
unjustifiable discrimination between countries where like conditions prevail" and/or a "disguised restriction on trade" in accordance with the requirements of the chapeau of Article XIV.
429 
341. In reviewing the Panel's treatment of the chap eau to Article XIV, we begin with Antigua's 
allegations of error, and then turn  to those raised by the United Stat es, proceeding as follows:  (a) first, 
we examine Antigua's claim that the Panel should not have analyzed the United States' defence under 
the chapeau;  (b) secondly, we an alyze Antigua's allegation that the Panel erred by focusing its 
discussion under the chapeau on the  remote supply  of gambling services rather than on the entire 
gambling industry;  (c) thirdly, we address the Unite d States' argument that the Panel articulated and 
applied a standard under the chapeau that is inconsis tent with its terms;  (d) fourthly, we review the 
Panel's finding on the alleged non-enforcement of certa in laws against United States remote suppliers 
of gambling services;  and (e) finally, we examine whether, in its analysis under the chapeau of 
Article XIV, the Panel fulfilled its oblig ations under Article 11 of the DSU.  
                                                      
427Appellate Body Report, US – Gasoline , p. 22, DSR 1996:I, 3, at 20. 
428Ibid., p. 22, DSR 1996:I, 3, at 20-21. 
429Panel Report, para. 6.608.  WT/DS285/AB/R 
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(a) Did the Panel Err in Making Findings Under the Chapeau of 
Article XIV? 
342. In deciding to assess whether the measures satis fied the requirements of the chapeau, the 
Panel explained that, even though such an examinat ion was "not necessary", it wanted "to assist the 
parties in resolving the underlying dispute in this case." 430  Antigua alleges that the Panel acted 
inconsistently with the Appellate Body's decision in  Korea – Various Measures on Beef  in 
determining whether the Wire Act, the Travel Act, and the IGBA meet the requirements of the chapeau after having found that they are were not provisionally justified. 
343. In  Korea – Various Measures on Beef ,  the Appellate Body stated, with respect to Article XX 
of the GATT 1994, that:   
Having found that the dual retail system did not fulfil the 
requirements of paragraph (d), the Panel correctly considered that it 
did not need to proceed to the second-tier analysis, that is, to examine the application in this case of the requirements of the introductory clause of Article XX.
431 
Contrary to Antigua's submission432, this statement does not impose a  requirement  on panels to stop 
evaluating a responding party's defence once they have  determined that a challenged measure is not 
provisionally justified under one of the paragra phs of the general exception provision.   
344. Provided that it complies with its duty to asses s a matter objectively, a panel enjoys the 
freedom to decide  which legal issues  it must address in order to resolve a dispute.433  Moreover, in 
some instances, a panel's decision to continue its  legal analysis and to make factual findings beyond 
those that are strictly necessary to resolve the dis pute may assist the Appellate Body should it later be 
called upon to complete the analysis434, as, for example, in this case.   
345. Therefore, the Panel did not err in examining wh ether the Wire Act, the Travel Act, and the 
IGBA meet the requirements of the chapeau of Ar ticle XIV, even though the Panel had found these 
measures not to fall within the scope of Article XIV(a) or XIV(c).   
                                                      
430Panel Report, para. 6.566. 
431Appellate Body Report, Korea – Various Measures on Beef , para. 156. 
432Antigua's other appellant's submission, para. 141. 
433Appellate Body Report, India – Patents (US), para. 87;  Appellate Body Report, US – Wool Shirts 
and Blouses , p. 19, DSR 1997:I, 323, at 340;  Appellate Body Report, Canada – Autos , para. 114.  
434Appellate Body Report, US – Softwood Lumber IV , para. 118. WT/DS285/AB/R 
Page 114  
 
(b) Did the Panel Improperly "Segment" the Gambling and Betting 
Industry in its Analysis?   
346. In examining whether discrimination exists in th e United States' application of the Wire Act, 
the Travel Act, and the IGBA, the Panel found th at "some of the concerns the United States has 
identified are specific only to the remote supply of gambling and betting services."
435  As a result, the 
Panel determined that it would ha ve been "inappropriate", in the context of determining whether 
WTO-consistent alternative measures are reasonably available, to compare the United States' treatment of concerns relating to the  remote  supply of gambling services, with its treatment of 
concerns relating to the non-remote supply of such services.  An tigua characterizes this approach as 
an improper "segment[ation]" of the gambling indu stry, the result of which was to "exclude[] a 
substantial portion of ga mbling and betting services from any analysis at all."
436  
347. We have already observed that the Panel found,  on the basis of evidence adduced by the 
United States, that the  remote  supply of gambling services gives rise to particular concerns.437  We 
see no error in the Panel's maintaining such a dis tinction for purposes of analyzing any discrimination 
in the application of the three federal statutes.  Su ch an approach merely reflects the view that the 
distinctive characteristics of the remote s upply of gambling services may call for distinctive 
regulatory methods, and that this could render a co mparison between the treatment of remote and non-
remote supply of gambling services inappropriate.   
(c) Did the Panel Fail to Take Account of the "Arbitrary" or 
"Unjustifiable" Nature of the Discrimination Referred to in the Chapeau? 
348. We consider next whether, contrary to the United States' allegations, the Panel accurately 
described and applied the correct interpretation of th e chapeau of Article XIV.  On the basis of the 
arguments advanced by Antigua, the Panel examined certain instances of alleged discrimination in the 
application of the Wire Act, the Travel Act, and the IGBA.
438  In the course of this analysis, the Panel 
found that the United States had not prosecuted cer tain domestic remote suppliers of gambling 
services439, and that a United States statute (the Intersta te Horseracing Act) could be understood, on its 
                                                      
435Panel Report, para. 6.498. 
436Antigua's other appellant's submission, para. 142. 
437Supra , para. 313. 
438Panel Report, para. 6.584. 
439Ibid., para. 6.588.  WT/DS285/AB/R 
 Page 115 
 
 
face, to permit certain types of remote betting on horseracing within the United States.440  On the basis 
of these two findings, the Panel concluded that:  
... the United States has not demonstrated that it applies its 
prohibition on the remote supply of these services in a  consistent 
manner  as between those supplied domestically and those that are 
supplied from other Members.  Accordingly, we believe that the United States has not demonstrated that it does not apply its prohibition on the remote supply of wagering services for horse racing in a manner that does not constitute "arbitrary and 
unjustifiable discrimination between countries where like conditions 
prevail" and/or a "disguised restriction on trade" in accordance with the requirements of the chapeau of Article XIV.
441  (emphasis added) 
349. The United States contends that the Panel's reasoning, in particular its standard of 
"consistency", reveals that the Panel, in fact, assessed only whether the United States treats domestic 
service suppliers differently from foreign service supp liers.  Such an assessment is inadequate, the 
United States argues, because the ch apeau also requires a determination of whether differential 
treatment, or discrimination, is "arbitrary" or "unjustifiable".   
350. The United States based its defence under the chap eau of Article XIV on the assertion that the 
measures at issue prohibit the remote supply of gambling and betting services by  any supplier , 
whether domestic or foreign.  In other words,  the United States sought to justify the Wire Act, the 
Travel Act, and the IGBA on the basis that there is  no discrimination  in the manner in which the 
three federal statutes are applied to the remote supply of gambling and betting services.442  The United 
States could have, but did not, put forward an additional argument that  even if  such discrimination 
exists, it does not rise to the level of "arbitrary" or "unjustifiable" discrimination. 
351. In the light of the arguments before it, we  do not read the Panel to have ignored the 
requirement of "arbitrary" or "unjustifiable" discr imination by articulating the standard under the 
                                                      
440Panel Report, para. 6.599: 
... the text of the revised statute does ap pear, on its face, to permit interstate 
pari-mutuel wagering over the telephone or other modes of electronic 
communication, which presumably would include the Internet, as long as 
such wagering is legal in both states.   
441Ibid., para. 6.607. 
442Supra , para. 287.   WT/DS285/AB/R 
Page 116  
 
chapeau of Article XIV as one of "consistency".
443  Rather, the Panel determined that Antigua had 
rebutted the United States' claim of no discrimination  at all  by showing that domestic service 
suppliers are permitted to provide  remote gambling services in situations where foreign service 
suppliers are not so permitted.  We see no error in the Panel's approach.   
(d) Did the Panel Err in its Examination of the Alleged Non-
Enforcement of the Measures at Issue Against Domestic Service Suppliers?   
352. In the course of examining whether the Wire Ac t, the Travel Act, and the IGBA are applied 
consistently with the chapeau of Article XIV, the Pa nel considered whether these laws are enforced in 
a manner that discriminates betwee n domestic and foreign service supp liers.  Antigua identified four 
United States firms that it claimed engage in th e remote supply of gambling services but have not 
been prosecuted under any of the three federa l statutes:  Youbet.com, TVG, Capital OTB, 
and Xpressbet.com.
444  Antigua contrasted this lack of enforcement with the case of an Antiguan 
service supplier that "had modelled [its] business on that of Capital OTB" but was nevertheless 
prosecuted and convicted under the Wire Act.445  In support of its argument that it applies these 
statutes equally to domestic and foreign service suppliers, the United States submitted statistical 
evidence to show that most cases prosecuted under these statutes involved gambling and betting 
services solely within the United States.446 
353. The Panel also "note[d] indications by the Un ited States" that prosecution proceedings were 
pending against one domestic remote supplier of gambling services (Youbet.com), but stated that it 
had no evidence as to whether any enforcement ac tion was being taken against the other three 
domestic remote suppliers of gambling services identified by Antigua.447  As to foreign service 
suppliers, the Panel observed that it had evidence of the prosecution of one Antiguan operator for 
                                                      
443See Panel Report, paras. 6.578-6.581, where the Panel discusses Appellate Body decisions relating to 
the chapeau of Article XX of the GATT 1994.  In particular, we note the Panel's quotation of the relevant portion of paragraph 150 of the Appellate Body decision in US – Shrimp , which states:  
[under the chapeau, first,] the appli cation of the measure must result in 
discrimination .  As we stated in United States – Gasoline , the nature and 
quality of this discrimination is different from the discrimination in the 
treatment of products which was already found to be inconsistent with one of the substantive obligations of the GATT 1994, such as Articles I, III 
or XI.  Second, the discrimination must be arbitrary  or unjustifiable  in 
character.  (original emphasis;  footnote omitted) 
(Panel Report, para. 6.578 (quoting Appellate Body Report, US – Shrimp , para. 150))  
444Ibid., para. 6.585. 
445Ibid., para. 6.585. 
446Ibid., para. 6.586. 
447Ibid., para. 6.588.  WT/DS285/AB/R 
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violations of the Wire Act.448  The Panel found this evidence "inconclusive" and concluded that the 
United States had not shown that it enforces its prohibition against the remote supply of gambling 
services on the three domestic service suppliers in a manner consistent with the chapeau of 
Article XIV.449     
354. We observe, first, that none of the three fede ral statutes distinguishes, on its face, between 
domestic and foreign service suppliers.450  We agree with the Panel that, in the context of facially 
neutral measures, there may nevertheless be situati ons where the selective prosecution of persons rises 
to the level of discrimination.  In our view, howev er, the evidence before the Panel could not justify 
finding that, notwithstanding the neutral language of the statute, the facts are "inconclusive" to establish "non-discrimination" in the United States'  enforcement of the Wire Act.  The Panel's 
conclusion rests, not only on an inadequate ev identiary foundation, but also on an incorrect 
understanding of the type of conduct that can, as a ma tter of law, be characterized as discrimination in 
the enforcement of measures. 
355. In this case, the Panel came to its conclusi on—that the United States failed to establish non-
discrimination in the enforcement of its laws—on the basis of only five cases:  one case of 
prosecution against a foreign service supplier;  one case of "pending" prosecution against a domestic 
service supplier
451;  and three cases with no evidence of prosecution against domestic service 
suppliers.  From these five cases, the Panel in e ffect concluded that the United States' defence had 
been sufficiently rebutted to warrant  a finding of "inconclusiveness".  
356. In our view, the proper significance to be attached  to isolated instances of enforcement, or 
lack thereof, cannot be determined in the absence of evidence allowing such instances to be placed in 
their proper context.  Such evid ence might include evidence on the  overall  number of suppliers, and 
on patterns  of enforcement, and on the reasons for par ticular instances of non-enforcement.  Indeed, 
enforcement agencies may refrain from prosecuti on in many instances for reasons unrelated to 
discriminatory intent and without discriminatory effect.    
357. Faced with the limited evidence the parties put before it with respect to enforcement, the 
Panel should rather have focused, as a matter of law, on the wording of the measures at issue.  These 
measures, on their face, do  not  discriminate between United States a nd foreign suppliers of remote 
                                                      
448Panel Report, para. 6.588. 
449Ibid., para. 6.589. 
450Supra , paras. 258-263. 
451Panel Report, para. 6.588. WT/DS285/AB/R 
Page 118  
 
gambling services.
452  We therefore  reverse   the Panel's finding, in paragraph 6.589 of the Panel 
Report, that  
... the United States has failed to demonstrate that the manner in 
which it enforced its prohibition on the remote supply of gambling 
and betting services against TVG, Capital OTB and Xpressbet.com is 
consistent with the requirements of the chapeau.   
(e) Did the Panel Fail to Comply with Article 11 of the DSU in its 
Analysis of Video Lottery Termin als, Nevada Bookmakers, and the 
Interstate Horseracing Act?   
358. The United States and Antigua each alleges that th e Panel did not comply with its obligations 
under Article 11 of the DSU in its analysis under th e chapeau of Article XIV.  We examine first 
Antigua's appeal relating to video lottery termin als and Nevada bookmakers, and then consider the 
United States' appeal concerning the Interstate Horseracing Act.  
359. The Panel examined Antigua's allegations that several states in the United States permit video 
lottery terminals453, and that Nevada permits bookmakers to o ffer their services over the internet and 
telephone.454  The Panel rejected both of these allegations .  Antigua contends that the Panel made 
these findings notwithstanding that Antigua had submitted evidence and the United States had submitted none, and that, by so finding, the Pa nel effectively "reversed" the burden of proof.
455 
360. Antigua is correct that the burden of proof is  on the United States, as the responding party 
invoking the Article XIV defence.  Once the Unit ed States established its defence with sufficient 
evidence and arguments, however, it was for An tigua to rebut the United States' defence.456  I n  
rejecting Antigua's allegations relating to vide o lottery terminals and Nevada bookmakers, we 
understand the Panel to have dete rmined that Antigua failed to rebut the United States' asserted 
defence under the chapeau, namely that its measures do not discriminate at all.  Consequently, we do 
not read the Panel to have reversed the burden of proof in these two instances, and we dismiss this ground of Antigua's appeal.   
                                                     
 
452Supra , paras. 258-263. 
453Panel Report, paras. 6.590-6.594. 
454Ibid., paras. 6.601-6.603. 
455Antigua's other appellant's submission, paras. 144-145. 
456See supra , para. 282.  WT/DS285/AB/R 
 Page 119 
 
 
361. We now turn to the United States' Article 11 claim relating to the chapeau.  The Panel 
examined the scope of application of the Interstate Horseracing Act ("IHA").457  Before the Panel, 
Antigua relied on the text of the IHA, which pr ovides that "[a]n interstate off-track wager  may be 
accepted  by an off-track betting system" where consent is obtained from certain organizations.458  
Antigua referred the Panel in particular to the defi nition given in the statute of "interstate off-track 
wager": 
[T]he term ... 'interstate off-track wager' means a legal wager placed 
or accepted in one State with respect to the outcome of a horserace 
taking place in another State and includes pari-mutuel wagers, where lawful in each State involved, placed or transmitted by an individual 
in one State via telephone or other electronic media and accepted by 
an off-track betting system in the same or another State , as well as 
the combination of any pari-mutuel wagering pools.
459  (emphasis 
added) 
Thus, according to Antigua, the IHA, on its face, authorizes  domestic  service suppliers, but not 
 foreign  service suppliers, to offer remote betting services in relation to certain horse races.460  To this 
extent, in Antigua's view, the IHA "exempts"461 domestic service suppliers from the prohibitions of 
the Wire Act, the Travel Act, and the IGBA.462   
362. The United States disagreed, claiming that the IHA—a civil statute—cannot "repeal"463 the 
Wire Act, the Travel Act, or the IGBA—which are criminal statutes— by implication , that is, merely 
                                                      
457We understand the Panel to have predicated its exam ination of the IHA on its view that the services 
under the IHA include services subject to the specific commitment undertaken by the United States in subsector 
10.D of its Schedule. 
458Section 3004 of Title 15 of the United States Code, Exhibit AB-82 submitted by Antigua to the 
Panel. (emphasis added) 
459Section 3002 of Title 15 of the United States Code, Exhibit AB-82 submitted by Antigua to the 
Panel. 
460Antigua submitted additional evidence in support of its  reading of the IHA.  See, for example, Panel 
Report, footnote 1061 to para. 6.599 and footnote 1062 to para. 6.600 (citing, inter alia , Congressional Record, 
House of Representatives Proceedings and Debates of the 106th Congress, Second Session (26 October 2000) 
146 Cong. Rec. H 11230, 106th Cong. 2nd Sess. (2000), Exhibit AB-124 submitted by Antigua to the Panel);  and United States General Accounting Office, Internet Gambling: An Overview of the Issues  (December 2002), 
Appendix II, Exhibit AB-17 submitted by Antigua to the Panel. 
461Panel Report, para. 6.595 (quoting Antigua's statement at the first substantive panel meeting, 
para. 92). 
462The Wire Act, the Travel Act, and the IGBA  prohibit a broad range of gambling and betting 
activities when they involve foreign or interstate comme rce. (Panel Report, paras.  6.362, 6.367, and 6.375) 
463Panel Report, para. 6.597 (quoting United States' response to Question 21 posed by the Panel, Panel 
Report, p. C-50). WT/DS285/AB/R 
Page 120  
 
by virtue of the IHA's adoption  subsequent  to that of the Wire Act, the Travel Act, and the IGBA.
464  
Rather, under principles of statutory interpretation in the United States, such a repeal could be 
effective only if done  explicitly , which was not the case with the IHA.465     
363. Thus, the Panel had before it conflicting eviden ce as to the relationship between the IHA, on 
the one hand, and the measures at issue, on the othe r.  We have already referred to the discretion 
accorded to panels, as fact-finders, in the assessment of the evidence.466  As the Appellate Body has 
observed on previous occasions, "not every error in the appreciation of the evidence (although it may 
give rise to a question of law) may be characterized  as a failure to make an objective assessment of 
the facts."467   
364. In our view, this aspect of the United States' appeal essentially challenges the Panel's failure 
to accord sufficient weight to th e evidence submitted by the United States with respect to the 
relationship under United States law between the I HA and the measures at issue.  The Panel had 
limited evidence before it, as submitted by the par ties, on which to base its conclusion.  This 
limitation, however, could not absolve the Panel of its responsibility to arrive at a conclusion as to the 
relationship between the IHA and the prohibitions in the Wire Act, the Travel Act, and the IGBA.  
The Panel found that the evidence provided by the Un ited States was not sufficiently persuasive to 
conclude that, as regards wagering on horseracing, the remote supply of such services by domestic  
firms continues to be prohibited notwithstanding the pl ain language of the IHA.  In this light, we are 
not persuaded that the Panel failed to make an objective assessment of the facts.  
365. With respect to the Panel's anal ysis under the chapeau of Article XIV, the United States also 
contends that the Panel failed to sa tisfy its obligations under Article 11 of the DSU in finding that "the 
United States has failed to demonstrate that the manner in which it enforced its prohibition on the 
remote supply of gambling and betting services agai nst TVG, Capital OTB and Xpressbet.com is 
consistent with the requirements of the chapeau."468  Having reversed this finding under the chapeau 
                                                      
464Panel Report, para. 6.595 (citing, inter alia , United States' first written submission to the Panel,  
paras. 33-35);  United States' second written submission to the Panel, para. 63;  and United States' response to 
Question 21 posed by the Panel, Panel Report, p. C-50.  See also Panel Report, para. 6.597 (citing, inter alia , 
United States' response to Question 21 posed by the Panel, Panel Report, p. C-50);  and Presidential Statement on Signing the Departments of Commerce, Justice, Stat e, the Judiciary, and Rela ted Agencies Appropriation 
Act, 21 December 2000, Exhibit US -17 submitted by the United States  to the Panel, pp. 3155-3156.  
465United States' response to Question 21 posed by th e Panel, Panel Report, p. C-50;  United States' 
second written submission to the Panel, paras. 63-64. 
466Supra , para. 330.   
467Appellate Body Report, EC – Hormones , para. 133.  See also Appellate Body Report, Japan – 
Apples , para. 222. 
468Panel Report, para. 6.589.  WT/DS285/AB/R 
 Page 121 
 
 
of Article XIV469, we  need not rule   on the United States' additional ground of appeal, namely that, in 
arriving at this finding, the Panel acted inconsis tently with its duty under Article 11 of the DSU. 
366. I n  s u m ,  w e   find  that none of the challenges under Ar ticle 11 of the DSU relating to the 
chapeau of Article XIV of the GATS has succeeded. 
(f) Conclusion under the Chapeau 
367. In paragraph 6.607 of the Panel Report, the Panel expressed its overa ll conclusion under the 
chapeau of Article XIV as follows: 
... the United States has not demonstrated that it does not apply its 
prohibition on the remote supply of wagering services for horse racing in a manner that does not constitute "arbitrary and unjustifiable discrimination between countries where like conditions prevail" and/or a "disguised restriction on trade" in accordance with 
the requirements of the chapeau of Article XIV. 
368. This conclusion rested on the Panel's findings relating to two instances allegedly revealing 
that the measures at issue discriminate between dom estic and foreign service suppliers, contrary to the 
defence asserted by the United States under the chap eau.  The first instance found by the Panel was 
based on "inconclusive" evidence of the alleged non-enforcement of the three federal statutes.
470  We 
have reversed this finding.471  The second instance found by the Panel was based on "the ambiguity 
relating to" the scope of application of the I HA and its relationship to the measures at issue. 472  We 
have upheld this finding.473   
369. Thus,  our  conclusion—that the Panel did not err in finding that the United States has not 
shown that its measures satisfy the requirements of  the chapeau—relates solely  to the possibility that 
the IHA exempts only  domestic   suppliers of remote betting services for horse racing from the 
prohibitions in the Wire Act, the Travel Act, and the IGBA.  In contrast, the  Panel's  overall 
conclusion under the chapeau was broader in scope.  As a result of our reversal of one of the two 
findings on which the Panel relied for its conclusion in  paragraph 6.607 of the Panel Report, we must  
modify   that conclusion.  We  find, rather, that the United States has not demonstrated that—in the  
                                                      
469Supra , para. 357. 
470Panel Report, paras. 6.589 and 6.607. 
471Supra , para. 357. 
472Panel Report, para. 6.607. 
473Supra , paras. 364 and 366. WT/DS285/AB/R 
Page 122  
 
light of the existence of the IHA—the Wire Ac t, the Travel Act, and the IGBA are applied 
consistently with the requirements of the chapeau.  Put another way, we uphold the Panel, but only in 
part. 
4. Overall Conclusion on Article XIV  
 
370. Our findings under Article XIV lead us to modify the overall conclusions of the Panel in 
paragraph 7.2(d) of the Panel Report.474  The Panel found that the United States failed to justify its 
measures as "necessary" under paragraph (a) of Article  XIV, and that it also failed to establish that 
those measures satisfy the requirements of the chapeau.   
371. We have found instead that those measures satisfy the "necessity" requirement.  We have also 
upheld, but only in part, the Panel's finding unde r the chapeau.  We explained that the only 
inconsistency that the Panel coul d have found with the requirements of the chapeau stems from the 
fact that the United States did not demonstrate th at the prohibition embodied in the measures at issue 
applies to both foreign   and  domestic suppliers of remote gambling services, notwithstanding the 
IHA—which, according to the Panel, "does appear, on its face, to permit"475  domestic  service 
suppliers to supply remote betting services for horse racing.  In other words, the United States did not establish that the IHA does not alter the scope of ap plication of the challenged measures, particularly 
vis-à-vis domestic suppliers of a specific type of remote gambling services.  In this respect, we wish 
to clarify that the Panel did not, and we do not, make a finding as to whether the IHA does, in fact, 
permit domestic suppliers to provi de certain remote betting services that would otherwise be 
prohibited by the Wire Act, the Travel Act, and/or the IGBA.  
372. Therefore, we  modify   the Panel's conclusion in paragraph 7.2(d) of the Panel Report.  We  
find,  instead, that the United States has demonstrated that the Wire Act, the Travel Act, and the IGBA 
fall within the scope of paragraph (a ) of Article XIV, but that it has not shown, in the light of the IHA, 
that the prohibitions embodied in these measures are applied to both foreign and domestic service 
suppliers of remote betting services for horse racing.  For this reason alone, we  find  that the United 
States has not established that these measures satisfy the requirements of the chapeau.  Here, too, we 
uphold the Panel, but only in part. 
                                                     
 
474See also Panel Report, para. 6.608. 
475Ibid., para. 6.599.  WT/DS285/AB/R 
 Page 123 
 
 
VIII.  Findings and Conclusions 
373. For the reasons set out in this Report, the Appellate Body: 
(A) with respect to the measures at issue , 
(i) upholds  the Panel's finding, in paragraph 6. 175 of the Panel Report, that "the 
alleged 'total prohibition' on the cro ss-border supply of gambling and betting 
services ... cannot constitute a single and autonomous 'measure' that can be challenged in and of itself"; 
(ii) finds  that the Panel did not err  in examining whether the following three 
federal laws are consistent with the United States' obligations under 
Article XVI of the GATS: 
(a) Section 1084 of Title 18 of the United States Code (the "Wire Act");   
(b) Section 1952 of Title 18 of the United States Code (the "Travel 
Act"); and 
(c) Section 1955 of Title 18 of the United States Code (the "Illegal 
Gambling Business Act"); 
(iii) finds   that the Panel  erred   in examining whether eight state laws, namely, 
those of Colorado, Louisiana, Massachusetts, Minnesota, New Jersey, New 
York, South Dakota and Utah, are consistent with the United States' 
obligations under Article XVI of the GATS; 
(B) with respect to the United States' GATS Schedule
, 
(i) upholds , albeit for different reasons, the Panel's finding that subsector 10.D 
of the United States' Schedule to th e GATS includes specific commitments 
on gambling and betting services; 
(C) with respect to Article XVI of the GATS , 
(i) upholds   the Panel's findings that a prohibition on the remote supply of 
gambling and betting services is a "limitation on the number of service 
suppliers" within the meaning of Article XVI:2(a), and that such a prohibition 
is also a "limitation on the total number  of service operations or on the total 
quantity of service output" within the meaning of Article XVI:2(c); WT/DS285/AB/R 
Page 124  
 
(ii) upholds   the Panel's finding, in paragraph 7.2(b)(i) of the Panel Report, that, 
by maintaining the Wire Act, the Tr avel Act, and the Illegal Gambling 
Business Act, the United States acts inconsistently with its obligations under 
Article XVI:1 and sub-paragraphs  (a) and (c) of Article XVI:2; 
(iii) reverses   the Panel's finding, in paragraph 7. 2(b)(ii) of the Panel Report, that 
four state laws, namely, those of Loui siana, Massachusetts, South Dakota and 
Utah, are inconsistent with the United States' obligations under Article XVI:1 
and sub-paragraphs (a) and (c) of Article XVI:2; and 
(iv) need not rule   on the Panel's findings that restrictions on service  consumers   
as opposed to service  suppliers   are neither limitations on "service suppliers" 
for the purposes of Article XVI:2(a), nor limitations on "service operations" 
or "service output" for the purposes of Article XVI:2(c);   
(D) with respect to Article XIV of the GATS
, 
(i) finds   that the Panel  did not fail   to satisfy its obligations under Article 11 of 
the DSU by deciding to examine the United States' defence under 
Article XIV; 
(ii) as regards the burden of proof, 
(a) finds   that the Panel  did not improperly assume   either the burden of 
establishing the defence under Article XIV(a) on behalf of the United 
States or the burden of rebutting the United States' defence on behalf 
of Antigua; 
(b) need not rule   on Antigua's appeal relating to the Panel's treatment of 
the burden of proof in its an alysis under paragraph (c) of 
Article XIV; 
(iii) as regards paragraph (a) of Article XIV, 
(a) upholds   the Panel's finding, in paragraph 6.487 of the Panel Report, 
that "the concerns which the Wire Act, the Travel Act and the Illegal Gambling Business Act seek to address fall within the scope of 
'public morals' and/or 'public order'";  WT/DS285/AB/R 
 Page 125 
 
 
(b) reverses   the Panel's finding that, because the United States did not 
enter into consultations with Anti gua, the United States was not able 
to justify the Wire Act, the Travel Act and the Illegal Gambling 
Business Act as "necessary" to protect  public morals or to maintain 
public order; 
(c) finds   that the Wire Act, the Travel  Act, and the Illegal Gambling 
Business Act are "measures ... necess ary to protect public morals or 
to maintain public order";  and 
(d) finds   that the Panel  did not fail   to "make an objective assessment of 
the facts of the case", as required by Article 11 of the DSU; 
(iv) as regards paragraph (c) of Article XIV, 
(a) reverses   the Panel's finding that, because the United States did not 
enter into consultations with Anti gua, the United States was not able 
to justify the Wire Act, the Travel Act and the Illegal Gambling Business Act as "necessary" to secure  compliance with the Racketeer 
Influenced and Corrupt Organizations statute;  and 
(b) need not determine   whether the Wire Act, the Travel Act, and the 
Illegal Gambling Business Act are measures justified under paragraph (c) of Article XIV; 
(v) as regards the chapeau of Article XIV, 
(a) reverses   the Panel's finding, in paragraph 6.589 of the Panel Report, 
that "the United States has failed to demonstrate that the manner in which it enforced its prohibition on the remote supply of gambling and betting services against TVG, Capital OTB and Xpressbet.com is 
consistent with the requirements of the chapeau"; 
(b) finds   that the Panel  did not fail   to "make an objective assessment of 
the facts of the case", as required by Article 11 of the DSU;  and 
(c) modifies   the Panel's conclusion in paragraph 6.607 of the Panel 
Report and  finds , rather, that the United States has not demonstrated 
that—in the light of the existence of the Interstate Horseracing Act—WT/DS285/AB/R 
Page 126  
 
the Wire Act, the Travel Act, and the Illegal Gambling Business Act 
are applied consistently with the requirements of the chapeau; 
(vi) as regards Article XIV in its entirety, 
(a) modifies   the Panel's conclusion in pa ragraph 7.2(d) of the Panel 
Report and  finds , instead, that the United States has demonstrated 
that the Wire Act, the Travel Act, and the Illegal Gambling Business 
Act are measures "necessary to protect public morals or maintain 
public order", in accordance with paragraph (a) of Article XIV, but that the United States has not shown,  in the light of the Interstate 
Horseracing Act, that the prohib itions embodied in those measures 
are applied to both foreign and domestic service suppliers of remote 
betting services for horse racing and, therefore, has not established 
that these measures satisfy the requirements of the chapeau;  and 
(E) with respect to the remaining allegations of error, 
 
(i) need not , in the light of the above findings, rule on the claim relating to 
Article 6.2 of the DSU476, on the additional claims raised under Article 11 of 
the DSU477, or on Antigua's conditional appeal of the Panel's finding that "the 
restrictions on market access that are covered by Article XVI are only those listed in paragraph 2 of this Article".
478 
374. The Appellate Body  recommends   that the Dispute Settlement Body request the United States 
to bring its measures, found in this Report and in th e Panel Report as modified by this Report to be 
inconsistent with the  General Agreement on Trade in Services , into conformity with its obligations 
under that Agreement. 
                                                      
476Supra , para. 127. 
477Supra , paras. 128, 156, 333 and 365. 
478Supra , para. 256.  WT/DS285/AB/R 
 Page 127 
 
 
 
Signed in the original in Geneva this 23rd day of March 2005 by:  
 
    
_________________________ 
Giorgio Sacerdoti 
Presiding Member 
  
 
  _________________________ _________________________  Georges Abi-Saab John Lockhart 
 Member Member 
 WT/DS285/AB/R 
Page 128  
 
ANNEX I 
 
 
WORLD TRADE  
ORGANIZATION  WT/DS285/6 
13 January 2005 
  
 
(05-0113) 
 Original:   English 
  
UNITED STATES – MEASURES AFFECTING THE CROSS-BORDER SUPPLY 
OF GAMBLING AND BETTING SERVICES 
 
Notification of an Appeal by the United States
 
under paragraph 4 of Article 16 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU)  
 
  The following notification, dated 7 January 200 5, from the Delegation of the United States, is 
being circulated to Members.  
_______________ 
 
Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review, the 
United States hereby notifies its decision to appeal  to the Appellate Body certain issues of law 
covered in the Report of the Panel on  United States – Measures Affecting the Cross-Border Supply of 
Gambling and Betting Services (WT/DS285/R) ("Panel Report") and certain legal interpretations 
developed by the Panel in this dispute. 
 
1. The United States seeks review by the Appellate  Body of the Panel’s legal conclusion that it 
"should consider" the following laws "in determining whether or not th e United States is in violation 
of its obligations" under the General Agreement on Trade in Services ("GATS"),
1 including the 
conclusion that Antigua and Barbuda  ("Antigua") had met its burden of proof that these laws "result 
in a prohibition on the cross-border supply of gambling and betting services"2:  (1) the Wire Act (18 
U.S.C. § 1084); (2) the Travel Act (18 U.S.C. § 1952); (3) the Illegal Gambling Business statute (18 
U.S.C. § 1955); (4) Louisiana : § 14:90.3 of the La. Rev. Stat. Ann.; (5) Massachusetts : § 17A of 
chapter 271 of Mass. Ann. Laws; (6) South Dakota : § 22-25A-8 of the S.D. Codified Laws; 
(7) Utah : § 76-10-1102(b) of the Utah Code; (8) Colorado :  § 18-10-103 of the Colorado Revised 
Statutes; (9) Minnesota : §§ 609.75, Subdivisions 2-3 and 609.75 5(1) of Minn. Stat. Ann; (10) 
New Jersey :  paragraph 2 of N.J. Const. Art. 4, Sec. VII and § 2A:40-1 of the N.J. Code; and (11) 
New York : § 9 of Art. I of N.Y. Const. and § 5-401 of  the N.Y. Gen. Oblig. L.  These conclusions are 
in error and are based on erroneous findings on i ssues of law and related legal interpretations 
regarding a complaining party’s initial burden of proving an alleged breach of Article XVI of the 
GATS, and on the Panel’s failure to carry out its ob ligations under Article 11 of the DSU to make an 
objective assessment of the matter before it.  These errors are contained in, inter alia, 
paragraphs 6.160-6.165, 6.199-6.249, 6.357-6. 421, and 7.1-7.2 of the Panel Report. 
 
                                                      
1Panel Report, para. 6.209. 
2Id., para. 6.249.  WT/DS285/AB/R 
 Page 129 
 
 
2. The United States seeks review by the Appellate  Body of the Panel’s legal conclusion that the 
U.S. schedule to the GATS in cludes specific commitments on gambling and betting services under 
subsector 10.D, "other recreational services (except s porting)."  This conclusi on is in error and is 
based on erroneous findings on issu es of law and related legal inte rpretations with respect to the 
provisions of the U.S. schedule to the GATS.  These errors are contained in, inter alia, 
paragraphs 6.49-6.138, 6.356, 6.527,  and 7.2-7.4 of the Panel Report. 
 3. The United States seeks review by the Appellate  Body of the Panel’s legal conclusion that the 
United States fails to accord services and service supp liers of Antigua treatment no less favorable than 
that provided for under the terms, limitations and conditions agreed and specified in the U.S. 
schedule, contrary to Article XVI:1 and Article XVI:2 of the GATS.  This conclusion is in error and is 
based on erroneous findings on issues of law and related legal interpretations with respect to 
Article XVI of the GATS.  These erroneous fi ndings include, for example, the following: 
 
(a) The Panel’s findings that any limitation that has the effect of limiting the number of 
service suppliers in a sector or subsector is a limitation in the  form  of numerical 
quotas  within the meaning of Article XVI:2(a), and that "a measure that is not 
expressed in the form of a numerical quota or economic needs test may still fall within the scope of Article XVI:2(a)"
3; 
 
(b) The Panel’s findings that any limitation that has the effect of limiting the number of 
service operations in a sector or subsector is a limitation expressed in the form of 
quotas within the meaning of Article XVI:2(c) of the GATS, and that a limitation that is not "expressed in terms of designated numerical units" may nonetheless fall within 
the scope of Article XVI:2(c); 
 
(c) The Panel’s finding that a WTO Member does not respect its GATS market access 
obligations under Article XVI:2 if it limits market access to any part of a scheduled 
sector or subsector, or if it restricts any means of delivery under mode 1 with respect to a committed sector; and  
 
(d) The Panel’s findings that the Unite d States maintains such limitations. 
 
These errors are contained in, inter alia, paragraphs 6.262-6.421 and 7.2- 7.4 of the Panel Report.  
 4. The United States seeks review by the Appellate  Body of the Panel’s legal conclusion that the 
Wire Act, the Travel Act (together with the rele vant state laws) and the Illegal Gambling Business 
statute (together with the relevant state laws) are not justified under Articles XI V(a) and XIV(c) of the 
GATS and are inconsistent with the requirements of the chapeau of Article XIV of the GATS.  These 
conclusions are in error and are based on errone ous findings on issues of law and related legal 
interpretations with respect to Article XIV of th e GATS, and on the Panel’s failure to ensure that 
consultations shall be without prejudice to the ri ghts of the United States in dispute settlement 
proceedings pursuant to Article 4.6 of the DSU.  These errors are contained in, inter alia, 
paragraphs 6.475-6.477, 6.488-6.535, 6.541-6. 608, and 7.2 of the Panel Report.  
 5. The United States seeks review by the Appellate  Body, pursuant to Article 11 of the DSU, of 
the Panel’s finding that "the United States has declin ed Antigua’s invitation to  engage in bilateral 
and/or multilateral consulta tions and/or negotiations."
4  The Panel’s disregard for uncontroverted 
evidence in the record, such as the fact that the United States engage d in bilateral consultations with 
Antigua regarding Antigua’s concerns relating to U.S. gambling laws pursuant to Article 4 of the 
                                                      
3Id., para. 6.332. 
4Id., para. 6.533. WT/DS285/AB/R 
Page 130  
 
DSU, is inconsistent with the Panel’s duty to make  an objective assessment of the matter before it.  
These errors are contained in, inter alia, paragraphs 6.525-6.533 of the Panel Report.  
 6. The United States seeks review by the Appellate  Body, pursuant to Article 11 of the DSU, of 
the Panel’s finding that "the United States has fail ed to demonstrate that the manner in which it 
enforced its prohibition on the remote supply of gambling and betting services against TVG, Capital 
OTB and Xpressbet.com is consistent with the requ irements of the chapeau" of Article XIV of the 
GATS.
5  The Panel’s disregard for uncontroverted eviden ce in the record, such as statistical evidence 
as to the overall treatment of domestic suppliers of remote gambling services as compared to that of 
foreign suppliers, is inconsistent with the Panel’s duty to make an objective assessment of the matter 
before it.  These errors are contained in, inter alia, paragraphs 6.585- 6.589 of the Panel Report.  
 7. The United States seeks review by the Appellate  Body, pursuant to Article 11 of the DSU, of 
the Panel’s finding that "the evidence presented to th e Panel is inconclusive and that the United States 
has not demonstrated that the [Interstate Horseraci ng Act], as amended, do es not permit interstate 
pari-mutuel wagering for horse racing over the te lephone or using other modes of electronic 
communication, including the Internet."
6  The Panel’s disregard for uncontroverted evidence in the 
record, such as the consistent position of the U.S.  Government that the IHA does not provide legal 
authority or protection for remote supply of gambling services and settled U.S. law regarding 
statutory construction, is inconsistent with the Panel’s duty to make an objective assessment of the 
matter before it.  These errors are contained in, inter alia, paragraphs 6.595-6.600 of the Panel Report. 
 
8. The United States seeks review by the Appellate Body of the Panel’s legal conclusion that "practice," which the Panel defines as "a repeated pattern of similar responses to a set of circumstances," can "be considered as an autono mous measure that can be challenged in and of 
itself."
7  This conclusion is in error and is based on erroneous findings on i ssues of law and related 
legal interpretations with respect to what constitutes a "measure" under Article 6.2 of the DSU.  These 
errors are contained in, inter alia, paragraphs 6.196-6.198 of the Panel Report. 
 
_______________ 
                                                      
5Id., para. 6.589. 
6Id., para. 6.600. 
7Panel Report, paras. 6.196-6.197.  WT/DS285/AB/R 
 Page 131 
 
 
ANNEX II 
 
 WORLD TRADE  
ORGANIZATION  WT/DS285/7 
16 February 2005 
  
 
(05-0613) 
 Original:   English 
 
 
 
UNITED STATES – MEASURES AFFECTING THE CROSS-BORDER SUPPLY 
OF GAMBLING AND BETTING SERVICES 
 
Notification of Other Appeal by Antigua and Barbuda  
under Article 16.4 and Article 17 of DSU, and under Rule 23(1) of the Working Procedures for 
Appellate Review  
 
  The following notification, dated 19 Janua ry 2005, from the Delegation of Antigua and 
Barbuda, is being circulated to Members.  
_______________ 
 
Pursuant to Rule 23(1) of the Working Procedures for Appellate Review , Antigua and 
Barbuda ("Antigua") hereby notifies the Dispute Se ttlement Body (the "DSB") of the World Trade 
Organisation (the "WTO") of its decision to appeal to the Appella te Body as an Other Appellant 
certain issues of law covered in the Report of the Panel in United States – Measures Affecting the 
Cross-Border Supply of Gambling and Betting Services (WT/DS285/R) (the "Final Report"). 
 1. Antigua seeks review of the Panel’s legal conc lusion that Antigua was not entitled to rely on 
what was referred to in the Final Report as  the "total prohibition" as a "measure" under 
Article XXVIII(a) of the General Agreement on Trad e in Services (the "GATS") and Article 6.2 of 
the WTO Understanding on Rules and Procedures Go verning the Settlement of Disputes (the 
"DSU").
8  The Panel erred when it concluded that Antigua  had not identified the "total prohibition" in 
its Panel request.  In making this finding, the Panel misinterpreted Antigua’s Panel request and 
incorrectly interpreted and applied DSU Arti cle 6.2 and GATS Articles I:1, I:3(a), XXIII 
and XVIII(a).  
 
2. Antigua seeks review of the Panel’s legal conc lusion that, even if Antigua had identified the 
"total prohibition" as a "measure" in its Panel requ est, Antigua was not entitled to rely upon the "total 
prohibition" as a measure.9  In coming to this conclusion, the Pa nel developed and applied a three-part 
test that is both unsupported by a nd inconsistent with DSU Article 6.2 and GATS Articles I:1, I:3(a) 
and XXVIII(a).  The Panel also erred by failing to  objectively assess and ascribe any significance to 
the United States’ admission that it maintained a "t otal prohibition" on the cross-border provision of 
gambling and betting services, contrary to DSU Article 11.  
                                                     
 
8See Final Report, paras. 6.171, 6.169, 6.170 and 6.177.  See also id. , paras. 6.156 and 6.157. 
9See id., paras. 6.171, 6.175–6.185.  See also id. , para. 197. WT/DS285/AB/R 
Page 132  
 
3. In the event the Appellate Body were find in favour of the United States in the review sought 
by the United States pursuant to the third numbered paragraph of the United States’ Notice of Appeal 
dated 7 January 2005 and reverse the conclusion of th e Panel in paragraph 7.2(b) of the Final Report, 
Antigua seeks review of the Panel’s legal conclu sion that GATS Article XVI:1 is limited by GATS 
Article XVI:2.
10  In making this determination, the Panel adopted a legally incorrect interpretation of 
GATS Article XVI. 
 4. Antigua seeks review of the Panel’s legal c onclusion that measures that prohibit consumers 
from using the gambling services offered by Antigua n operators through cr oss-border supply do not 
violate GATS Articles XVI:2(a) and XVI:2(c).
11  In making this determination, the Panel adopted a 
legally incorrect interpretation of GATS Articles XVI:2(a) and XVI:2(c). 
 5. Antigua seeks review of the Panel’s decision to consider the claimed defence of the United 
States under GATS Article XIV, which was affirmativel y raised by the United States only at the last 
session of the second substantive meeting of the Panel with the parties–too late in the proceeding to 
allow for a fair opportunity by Antigua to re but the defence and for proper assessment and 
adjudication of the claim by the Panel.
12  Additionally, the Panel in essence constructed and 
completed the GATS Article XIV on behalf of the United States, thus relieving the United States of 
its burden of proof.  The consideration by the Pa nel of the Article XIV defence submitted by the 
United States at such a late date in the proceeding, as well as the construction and completion of such defence by the Panel on behalf of the United States, is contrary to the requirements of due process, the 
principle of equality of arms and the terms of DSU Articles 3.10 and 11. 
 6. In the event the Appellate Body determ ines that the United States’ GATS Article XIV 
defence was properly before the Panel, Antigua  seeks review of the Panel’s application and 
assessment of GATS Article XIV(a) to the defence, which was erroneous in a number of respects,
13 
including without limitation (i) failure to properly consider the text of GATS Article XIV; (ii) 
improper analysis and application of the t est developed by the Appellate Body in Korea – Measures 
Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R (" Korea – Beef "); and (iii) 
failure to make an objective assessment of the matters  before it, including the facts, contrary to DSU 
Article 11.    
These errors are illustrated, for example, by: 
 
(A) The failure of the Panel to take into consideration footnote 5 of GATS 
Article XIV(a), which was mentione d in paragraphs 6.467 and 6.468 of the Final Report, but never 
applied to the facts of the case nor mentioned again in the Final Report.  
 
(B) The Panel giving total deference to the fi ndings of United States authorities in making 
its assessment of (i) whether the applicable measu res are measures designed to protect public morals 
or to maintain public order and (ii) the "necessary" test set out in  Korea – Beef , and in each case not 
examining the actual facts before it in making the a ssessments.  With respect to (i), in its assessment 
of the point, contained in paragraphs 6.479 thro ugh 6.487 of the Final Report, the Panel cites no 
evidence to support its conclusions other than findi ngs or statements of the United States or its 
authorities.  With respect to (ii), first, in its assessment of the "importance of the interests or values 
that the measures were designed to protect" aspect of the Korea – Beef test, contained in 
paragraphs 6.489 through 6.492 of the Final Re port, the Panel cites no evidence to support its 
conclusions other than findings or statements  of the United States or its authorities and second , in its 
                                                     
 
10See id ., paras. 6.298, 6.299 and 6.318. 
11See id ., paras. 6.382, 6.383, 6.397, 6.398, 6.401, 6.402, 6.405 and 6.406. 
12See id. , paras. 6.444, 6.583 and 6.584. 
13See id. , paras. 6.467–6.469, 6.474. 6. 479–6.521, 6.533 and 6.535.  WT/DS285/AB/R 
 Page 133 
 
 
apparent differentiation of "remote" gambling services from "non-remote" gambling services, contained in paragraphs 6.498 through 6.521 of th e Final Report, substantially all of the evidence 
cited by the Panel in support of its conclusions ar e findings or statements of the United States or its 
authorities
14 and a number of the findings are not supported by any evidence at all. 
 
(C) The Panel, in its assessment of the "necessary" test set out in Korea – Beef , reaching 
its conclusions regarding the "importance of the interests or values" and the differentiation of 
"remote" gambling services based solely upon appa rent "concerns" of the United States without 
requiring evidence–and without making any findin g–that the "concerns" we re justified under the 
circumstances of this case.  The United States submitted no evidence associated with Antiguan15 
cross-border supply of gambling and betting services of, inter alia  (i) money laundering; (ii) fraud; 
(iii) health concerns; (iv) underage gambling; or  (v) organised crime (collectively, the "Five 
Concerns").   
(D) The failure of the Panel to make an objec tive assessment of the extent to which the 
measures at issue actually contributed to the e nds ostensibly pursued by the measures.  In 
paragraph 6.494 of the Final Report, the Panel dismissed this prong of the Korea – Beef test by 
concluding that because the United States measures prohibited the cross-border supply of gambling services, the measures "must contribute, at least to  some extent, to addressing those concerns."  
However, the Panel failed to make any factual in quiry at all as to whether the measures actually 
contribute to addressing the Five Concerns.   
 
(E) The Panel ignoring or misapplying factua l evidence presented by Antigua.  Antigua 
submitted substantial third-party evidence regarding th e existence of the Five Concerns in the United 
States domestic gambling market, regulatory schemes and other contexts in which goods or services 
are provided on a cross-border or Internet-delivered basis.
16  Very little of this evidence was taken 
into consideration by the Panel.  The Panel erred by  failing to consider this evidence (i) in the context 
of determining exactly how material the "concer ns" of the United States are regarding problems 
associated with the Five Concerns; (ii) to assess th e United States’ tolerance of problems associated 
with the Five Concerns in its regulated domestic i ndustry; (iii) to determine whether any basis exists 
for the differentiation of "remote" gambling ser vices from "non-remote" gambling services in respect 
of the Five Concerns; (v) whether reasonable altern atives to prohibition were available to the United 
States; or (vi) in contrast to the complete lack of similar evidence adduced by the United States in the 
context of the provision of cross-border gambling services.  7. In the event the Appellate Body determ ines that the United States’ GATS Article XIV 
defence was properly before the Panel, and furthe r in the event the Appe llate Body upholds the 
"three-part" measure identification test developed by  the Panel in paragraphs 6.215 through 6.249 of 
the Final Report, Antigua seeks review of the Pane l’s finding that the United States had sufficiently 
identified the United States’ "RICO" statute
17 for consideration under GATS Article XIV(c).18  The 
Panel’s finding is not supported by analysis under the "three-part" test, is not supported by any 
evidence and is contrary to DSU Article 11. 
                                                      
14The only other evidence considered by the Panel in this discussion is an out-of-context reference to 
some language in a report prepared for Antigua by certain experts (Final Report, para. 6.513) and extracts from a statement made by a credit card company executive before the Un ited States Congress ( id., para. 6.518). 
15Nor was any evidence submitted by the United St ates pertaining to an y other jurisdiction. 
16Note that this evidence was not presented in the context of GATS Article XIV due to the failure of 
the United States to raise its GATS Article XIV defence until after all written submissions had been made, and 
was extrapolated by the Panel from Antigua’s discussion of GATS Article XVII.  See Final Report, para. 6.584.  
See also paragraph 5 above. 
1718 U.S.C. §§ 1961–1968. 
18See Final Report, paras. 6.548-6.551. WT/DS285/AB/R 
Page 134  
 
 8. In the event the Appellate Body determ ines that the United States’ GATS Article XIV 
defence was properly before the Panel, Antigua  seeks review of the Panel’s application and 
assessment of GATS Article XIV(c) to the defence,  which was legally erroneous in a number of 
respects,
19 including without limitation (i) in assessing the RICO statute, the Panel failed to properly 
apply GATS Article XIV(c) as the Panel had already determined that the state statutes upon which the 
RICO statute itself relies were not properly before the Panel;20 (ii) in assessing the RICO statute, the 
Panel failed to properly apply GATS Article XIV(c) as the Panel had already determined that with 
respect to the one "concern" addressed by the RICO  statute, organised crime, the United States had 
not been able to demonstrate it was a spec ific concern related to "remote" gambling;21 (iii) in 
application of the "necessary" test under Korea – Beef , the Panel failed to make an objective 
assessment of the matters before it, including the facts, contrary to DSU Article 11.   
 
These errors are illustrated, for example, by: 
 
(A) The Panel giving total deference to the fi ndings of United States authorities in making 
its assessment of (i) whether the applicable measu res secure compliance with the RICO statute and 
(ii) the "necessary" test set out in  Korea – Beef , and in each case not examining the actual facts 
before it in making the assessments.  With respect to  (i), in its assessment of the point, contained in 
paragraphs 6.552 through 6.556 of the Final Repo rt, the Panel cited no evidence to support its 
conclusions other than findings or statements of the United States or its authorities.  With respect 
to (ii), in its assessment of the "importance of the interests or values that the measures were designed 
to protect" aspect of the Korea – Beef test, contained in paragraph 6.55 8 of the Final Report, the Panel 
cited no evidence to support its conclusions other than  findings or statements of the United States or 
its authorities.  
(B) The failure of the Panel to make an objec tive assessment of the extent to which the 
measures at issue actually contributed to the ends pursued by the RICO statute.  In paragraphs 6.559 
and 6.560 of the Final Report, the Panel not only relie d solely on findings or statements of the United 
States or its authorities in reaching its conclusions, but  also failed to require or consider any evidence 
that organised crime is a legitimate concern in the context of cross-border gambling services provided 
from Antigua or that the measures actually contribu te to the suppression of organised crime and to 
what extent they do so. 
 
9. In the event the Appellate Body determ ines that the United States’ GATS Article XIV 
defence was properly before the Panel, Antigua  seeks review of the Panel’s application and 
assessment of the "chapeau" of GATS Article XIV, which was erroneous in a number of respects,
22 
including without limitation (i)  the Panel’s determin ation to apply the chapeau  in the absence of a 
finding of a "preliminary justification" in favour of the United States under GATS Article XIV; (ii) 
the Panel’s determination to examine only certain  narrow segments of the gambling industry in its 
assessment of the "discrimination" pr ong of the chapeau test set forth in United States – Import 
Prohibition of Certain Shrimp and Shrimp Products , WT/DS58/AB/R (" US – Shrimp "); and (iii) the 
Panel’s failure to make an objective assessment of th e matters before it, including the facts, contrary 
to DSU Article 11. 
 
These errors are illustrated, for example, by: 
 
                                                      
19See id. , paras. 6.550, 6.553–6.557, 6.560, 6.562 and 6.564. 
20Id., para. 6.547. 
21Id., para. 6.520. 
22Id., paras. 6.567, 6.585–6.607.  WT/DS285/AB/R 
 Page 135 
 
 
(A) In the discussion regarding video lottery terminals in paragraphs 6.590 through 6.594 
of the Final Report, the Panel (i) made a conclusion regarding "identification and age verification" in 
connection with purchases at video lottery terminals that is not supported by any evidence; (ii) 
ignored significant Antiguan evidence to the contrary; and (iii) shifted the burden of proof to Antigua 
to "refute" the unproven claim of the United States as to "identification and age verification." 
 
(B) In the discussion regarding Nevada bookmake rs in paragraphs 6.601 through 6.603 of 
the Final Report, the Panel (i) made a conclusi on regarding the provision of gambling and betting 
services through the Internet in Nevada that is no t supported by any evidence; (ii) ignored Antiguan 
evidence to the contrary; and (iii) shifted the burden of proof to Antigua to refute the unproven claim 
of the United States that Nevada bookmakers do not provide services via the Internet. 
 
(C) The discussion regarding the letters from a state lottery association is without any 
context at all.  
_______________ WT/DS285/AB/R 
Page 136  
 
ANNEX II(a) 
 
 
WORLD TRADE  
ORGANIZATION  WT/DS285/7/Corr.1 
17 February 2005  
 
(05-0677) 
  
   
UNITED STATES – MEASURES AFFECTING THE CROSS-BORDER SUPPLY 
OF GAMBLING AND BETTING SERVICES 
 
Notification of Other Appeal by Antigua and Barbuda
 
under Article 16.4 and Article 17 of DSU, and under Rule 23(1) of the  
Working Procedures for Appellate Review  
 
Corrigendum  
  In numbered paragraph 1, the fi nal reference in the last sentenc e of the paragraph should be to 
"GATS Article XXVIII(a)", and not to "GATS Article XVIII(a)", so as to read: 
 
"In making this finding, the Panel misint erpreted Antigua’s Panel request and 
incorrectly interpreted and applied DSU Ar ticle 6.2 and GATS Articles I:1, I:3(a), 
XXIII and XXVIII(a)." 
_______________  WT/DS285/AB/R 
 Page 137 
 
 
ANNEX III 
 
 
GENERAL AGREEMENT  GATS/SC/90 
  15 April 1994 
ON TRADE IN SERVICES  (94-1088)   
 
 
 
     
THE UNITED STATES OF AMERICA
 
 
Schedule of Specific Commitments  
 
 
(This is authentic in English only) 
 
____________________ 
 
 
  
 THE UNITED STATES OF AMERICA - SC HEDULE OF SPECIFIC COMMITMENTS  
 
Modes of supply:             1)    Cross-border supply         2)    Consumption abroad           3)    Commercial presence          4)    Presence of natural persons   
...
Sector or subsector Limitations on market access Limi tations on national treatm ent Additional commitments 
II. SECTOR-SPECIFIC COMMITMENTS 
... 
10.  RECREATIONAL, CULTURAL, & 
SPORTING SERVICES 
    
A.  ENTERTAINMENT SERVICES 
(INCLUDING THEATRE, LIVE 
BANDS AND CIRCUS SERVICES) 
 1) None 
2) None 
3) None 
4)  Unbound, except as  indicated in the 
horizontal section 1) None 
2) None 
3) None 
4)  None  
B.  NEWS AGENCY SERVICES 1) None 
2) None 
3) None 4)  Unbound, except as  indicated in the 
horizontal section 1) None 
2) None 
3) None 4)  None  
C.  LIBRARIES, ARCHIVES, 
MUSEUMS AND OTHER 
CULTURAL SERVICES 1) None 
2) None 
3) None 4)  Unbound, except as  indicated in the 
horizontal section 1) None 
2) None 
3) None 4)  None  
D.  OTHER RECREATIONAL 
SERVICES (except sporting) 1) None 
2) None 3)  The number of concessions available 
for commercial operations in federal, 
state and local facilities is limited 
4)  Unbound, except as  indicated in the 
horizontal section 1) None 
2) None 3) None 
4)  None  
 WT/DS285/AB/R 
Page 138 
 
__________